Abt18 v Minister for Home Affairs - [2019] FCCA 2459

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABT18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2459

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Home Affairs to refuse a Protection visa based on the applicant’s fear of harm arising from his witnessing an attack on two doctors in Sri Lanka – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not considering new information and only accepting material from his entry interview – Immigration Assessment Authority considered whether it could take into consideration new information under s.473DD of the Migration Act 1958 (Cth) and correctly found that it could not – Immigration Assessment Authority considered information from a range of sources and not merely entry interview as asserted by the applicant – grounds otherwise seek to invoke impermissible merits review – applicant fails to establish any jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 36, 46A, 473CA, 473CB, 473DD

Cases cited:

AUH17 v Minister for Immigration [2018] FCA 388
AWA15 v Minister for Immigration [2018] FCA 604
BHM17 v Minister for Immigration & Border Protection [2019] FCA 1396

Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600

Applicant:

ABT18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 40 of 2018

Judgment of:

Judge Dowdy

Hearing date:

14 September 2018

Date of Last Submission:

17 September 2018

Delivered at:

Sydney

Delivered on:

5 September 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Ms A. Haddad

Solicitors for the First Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 8 January 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 40 of 2018

ABT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Sri Lanka of Tamil ethnicity aged 34 years, having been born on 19 November 1984.
By Application filed in this Court on 8 January 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 13 December 2017 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 June 2017 refusing to grant to him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Protection visa).

Background

The Applicant was born in the Northern Province of Sri Lanka and is a Hindu Tamil. He arrived in Australia…

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 2459
Decision Date: 5 September 2019

CaseChat Overview and Summary

The applicant, Abt18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the Minister for Home Affairs' refusal to grant a protection visa. The applicant's claim for protection was based on a fear of harm arising from witnessing an attack on two doctors in Sri Lanka. The applicant contended that the IAA committed a jurisdictional error by failing to consider new information and by relying solely on material from his entry interview.

The central legal issues before the court were whether the IAA had jurisdictionally erred by not considering new information provided by the applicant, and whether the IAA had confined its review to only the applicant's entry interview material. The applicant also raised grounds that sought to invoke an impermissible merits review of the IAA's decision.

Dowdy J found that the IAA had correctly considered its ability to take into account new information under section 473DD of the *Migration Act 1958* (Cth) and had correctly concluded that it could not do so in this instance. Furthermore, the court determined that the IAA had considered information from a range of sources, not solely the applicant's entry interview as alleged. The remaining grounds were found to be an attempt to seek a merits review of the decision, which is outside the scope of judicial review. Consequently, the applicant failed to establish any jurisdictional error.

The application for judicial review was dismissed.

Orders