Abl18 v Minister for Home Affairs - [2019] FCCA 1178

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABL18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1178

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to address an integer of the applicant’s claim or relevant consideration – whether the Authority misconstrued or misapplied the term “exceptional circumstances” – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476

Cases cited:

BVZ16 the Minister for Immigration and Citizenship (2017) 254 FCR 221

Applicant:

ABL18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 10 of 2018

Judgment of:

Judge Street

Hearing date:

21 March 2019

Date of Last Submission:

21 March 2019

Delivered at:

Adelaide

Delivered on:

21 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms N Milutinovic
Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5000).

DATE OF ORDER: 21 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 10 of 2018

ABL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Immigration Assessment Authority (“the Authority”) under a Part 7AA of the Act made on 14 December 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 28 October 2012 as an unauthorised maritime arrival. The applicant was found to be a Tamil Hindu and feared harm from the Sri Lankan government. The applicant mentioned a particular incident occurring in 2009 and that in July and August and September 2012, the Sri Lankan army, including the Criminal Investigation Department (“CID”), asked the applicant to identify ex-Liberation Tigers of Tamil Eelam (“LTTE”) members. The applicant claimed that just 15 days later the CID came to the village to ask the applicant to identify ex-LTTE members and told him that he had to be careful. The applicant mentioned he felt his life was in danger and that every night the CID came to the village and to the applicant’s home and asked the family for a photograph of him. The applicant was not worried about his wife and children, as the CIDs interests, according to the applicant, was just in him. The applicant stayed and worked for the owner of the house in his village for three days and then decided to come to Australia. The applicant alleges the CID has continued to go to his house once or twice a month looking for him. The applicant alleges he cannot go back to Sri Lanka…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1178
Decision Date: 21 March 2019

CaseChat Overview and Summary

The applicant, Abl18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The dispute centred on whether the IAA had adequately considered all aspects of Abl18's claim and whether it had correctly interpreted and applied the concept of "exceptional circumstances" within the relevant legislative framework. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the IAA had committed a jurisdictional error by failing to address an integer of Abl18's claim, and whether the IAA had misconstrued or misapplied the term "exceptional circumstances" as it related to the visa application. These questions required the Court to examine the IAA's decision-making process and its interpretation of the legal standards applicable to the assessment of the visa.

Judge Street found that the IAA had not made a jurisdictional error. The Court's reasoning indicated that the IAA had considered the relevant material before it and had not failed to address any integer of the applicant's claim. Furthermore, the Court determined that the IAA had not misconstrued or misapplied the term "exceptional circumstances," concluding that the IAA's interpretation and application of this term were within the bounds of its legal authority. Consequently, the application for judicial review was dismissed.

Orders