Adn17 v Minister for Immigration - [2018] FCCA 3606

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADN17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3606

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider all of the applicant’s claims – whether the Authority failed to consider an integer of the applicant’s claims – whether the Authority failed to consider the applicant’s claims cumulatively – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant:

ADN17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 16 of 2017

Judgment of:

Judge Street

Hearing date:

4 December 2018

Date of Last Submission:

4 December 2018

Delivered at:

Perth

Delivered on:

4 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr F Robertson

Solicitors for the Applicant:

AUM Legal

Counsel for the Respondents:

Ms C Walsh

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 4 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 16 of 2017

ADN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 7 December 2016 affirming 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 as an unauthorised maritime arrival on 13 October 2012. The applicant was found to be a Tamil from the Kilinochchi District in the Northern Province.
The applicant claimed to fear harm from the Sri Lankan Government, particularly the Criminal Investigation Department (“CID”), due to his Tamil ethnicity and the fact that he was part of the Liberation Tigers of Tamil Eelam (“LTTE”) cause. The applicant also claimed to fear harm from the Sri Lankan authorities due to seeking asylum abroad. On 2 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 7 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and Practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions which were expressly referred to in the Authority’s reasons.
The Authority in its reasons identified the background to the visa application and had regard to the material referred…

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.

Keep reading for free

Create a free CaseChat account to read Adn17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3606
Decision Date: 4 December 2018

CaseChat Overview and Summary

The applicant, Adn17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around allegations that the IAA had failed to adequately consider all of the applicant's claims, including specific integers of those claims, and had not assessed them cumulatively. The matter came before Judge Street.

The primary legal issues before the Court were whether the IAA had committed jurisdictional error by failing to consider all of the applicant's claims, by failing to consider an integer of those claims, or by failing to consider the applicant's claims cumulatively.

Judge Street found that no jurisdictional error had been made out. The reasoning applied by the Court focused on whether the IAA had demonstrably considered the entirety of the applicant's case as presented. The Court's analysis would have involved a close examination of the IAA's decision-making process and the evidence before it to determine if any claims or parts of claims had been overlooked or inadequately addressed, and whether the cumulative effect of the claims had been properly weighed.

Ultimately, the Court dismissed the amended application.

Orders