AFE18 v Minister for Home Affairs - [2019] FCCA 2225

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFE18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2225

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority erred in assessing new information or failed to consider an integer of the applicant’s claims considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.473DA, 473DC, 473DD

Cases cited:

ADN18 v Minister for Home Affairs [2018] FCA 1677

AYK17 v Minister for Immigration [2019] FCA 1053

CVK16 v Minister for Immigration [2017] FCA 1434; 257 FCR 297

Minister for Immigration v BBS16[2017] FCAFC 176; (2017) 257 FCR 111

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713

Applicant:

AFE18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 128 of 2018

Judgment of:

Judge Driver

Hearing date:

14 August 2019

Delivered at:

Sydney

Delivered on:

23 September 2019

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The second amended application the subject of leave granted on 14 August 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 128 of 2018

AFE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 December 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the applicant on 8 July 2019.
The applicant is a male, born in Vavuniya District, in the Northern province of Sri Lanka on 31 March 1982, and is of Tamil ethnicity.[1]
[1] Court Book (CB) 3.
The applicant arrived in Australia at Christmas Island without a valid visa by boat on 12 October 2012 and applied for a Safe Haven Enterprise Visa (SHEV) on 2 February 2016.[2]
[2] CB 46 and 169 at [1].
The delegate refused to grant the visa on 13 June 2017.[3]
[3] CB 169 at [2].
The delegate’s decision was reviewed by the Authority. The Authority affirmed the delegate’s decision and refused to grant the applicant a visa on 21 December 2017.[4]
[4] CB 168.

The applicant’s claims

The applicant is a Sri Lankan citizen, of Tamil ethnicity and Hindu faith.[5]
[5] CB 5.
The applicant’s claims include the following:[6]
a)in 2008, after four Sinhalese men were killed by the Liberation Tigers of Tamil Eelam (LTTE), the applicant was chased and harassed by other Sinhalese men;
b)in 2012, the applicant became involved in a land dispute with his Sinhalese neighbours. The neighbours claimed that the land, which had…

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 2225
Decision Date: 23 September 2019

CaseChat Overview and Summary

The applicant, AFE18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm if returned to Sri Lanka. Judge Driver of the Federal Circuit and Family Court of Australia considered whether the IAA had erred in its assessment of the applicant's claims.

The central legal issues before the court were whether the IAA had made a jurisdictional error by failing to properly assess new information provided by the applicant, or by failing to consider an integral part of the applicant's claims. The applicant contended that these failures amounted to a jurisdictional error in the IAA's decision-making process.

Judge Driver found that the IAA had not committed jurisdictional error. The court reasoned that the IAA had adequately considered the material before it, including the new information provided by the applicant, and had properly assessed the applicant's claims. The Authority's findings that the applicant's fears were not well-founded were open to it on the evidence. Consequently, the application for judicial review was dismissed.

Orders