Edelman J
20.
considered all aspects of ASF17's claim for a protection visa,[1] so that ASF17 has never received a proper consideration of whether he is entitled to a "protection finding",[2] the delegate's refusal of ASF17's application for a protection visa (a Safe Haven Enterprise Visa[3]) was upheld due to ASF17's provision of a bogus document.[4]
64 In this proceeding, it appears that ASF17 only sought to bring a collateral challenge to the valid finding of the delegate that he had no well-founded fear of persecution. There were no substantial submissions in this Court concerning whether such a collateral challenge should be permitted or how the success of such a collateral challenge to findings of fact should affect the validity of the broader Migration Act scheme for detention, including the making and adjudication of claims for protection, which involves a parallel process by which the same issues of fact relevant to detention are decided, reviewed, and sometimes even redecided by administrative or judicial processes. The primary judge considered the collateral challenge but concluded that ASF17 did not have a "genuine subjective fear of harm".[5]
65 The material before this Court suggests that before the primary judge ASF17 only alleged a fear of persecution due to his bisexuality on a narrow factual basis arising from an incident which the primary judge found did not occur. On that basis, the conclusion of the primary judge must be accepted. In circumstances in which ASF17 cannot be said to have a genuine subjective fear of persecution, and therefore cannot have a well-founded fear of persecution, the detention of ASF17 pending removal must be valid under ss 189(1) and 196(1) of the Migration Act.
- ↑ ASF17 v Minister for Immigration and Border Protection [2017] FCCA 2498 at [49]; ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149 at [29]. See Migration Act, s 36(2)(aa).
- ↑ Within the meaning of Migration Act, s 197C(4) read with s 36A(1)(b) and s 36(2)(aa).
- ↑ Migration Act, s 35A.
- ↑ ASF17 v Minister for Immigration and Border Protection [2017] FCCA 2498 at [62]; ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149 at [30]. See Migration Act, s 91WA.
- ↑ ASF17 v The Commonwealth [2024] FCA 7 at [130].
