Aii19 v Minister for Immigration - [2019] FCCA 2595

FEDERAL CIRCUIT COURT OF AUSTRALIA

AII19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2595

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5H, 5J, 473DC

Cases cited:

Chan v Minister for Immigration (1969) 169 CLR 379
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration [2004] FCAFC 10
QAAT v Minister for Immigration (2005) 149 FCR 299
Randhawa v Minister for Immigration (1994) 52 FCR 437
Selvadurai v Minister for Immigration (1994) 34 ALD 347

Applicant:

AII19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 184 of 2019

Judgment of:

Judge Driver

Hearing date:

13 September 2019

Delivered at:

Sydney

Delivered on:

13 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Zarucki of Clayton Utz

INTERLOCUTORY ORDERS

The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 184 of 2019

AII19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 6 September 2019.
On 1 March 2017, the applicant, a citizen of Sri Lanka of Tamil ethnicity and Hindu religion, lodged a valid application for a protection visa.[1] The applicant’s claims for protection are summarised at [6] to [7] of the decision record (DR).[2] In short, the applicant claimed to fear harm from the CID, paramilitary groups and Sri Lankan army and government (the Sri Lankan authorities) because:
a)of his imputed connection to the LTTE,[3] namely, through his brother who left to join the movement and subsequently disappeared and as someone who had grown up in an area where the LTTE had free movement and support;
b)of his political opinion, namely his work (and campaigning) for the Tamil National Alliance (TNA);

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 2595
Decision Date: 13 September 2019

CaseChat Overview and Summary

The applicant, Aii19, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The Minister for Immigration was the respondent. The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the applicant had an arguable case of jurisdictional error in relation to the IAA's decision. This involved considering whether the IAA had failed to afford the applicant procedural fairness, specifically in relation to an interlocutory dismissal of a show cause application.

Driver J found that the applicant had not demonstrated an arguable case of jurisdictional error. The Court reasoned that the IAA's decision to dismiss the show cause application was a valid exercise of its powers, and that the applicant had not been denied procedural fairness. The applicant's submissions did not disclose any error of law on the part of the IAA.

Consequently, the Court ordered the dismissal of the application for judicial review.

Orders