AKC17 v Minister for Immigration - [2017] FCCA 2282

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKC17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2282

Catchwords:
MIGRATION – Immigration Assessment Authority – not accepted that no reasonable Authority could refuse to exercise the power under s.473DC(3) – no legally unreasonable failure to exercise power – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Cases cited:

DVE16 v Minister for Immigration & Anor [2017] FCCA 2084

DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851

Applicant:

AKC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 282 of 2017

Judgment of:

Judge Street

Hearing date:

19 September 2017

Date of Last Submission:

19 September 2017

Delivered at:

Sydney

Delivered on:

19 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Rasan T Selliah & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

Grant leave to the applicant to file in Court the amended application dated 6 September 2017 and the Court dispenses with the need for the electronic filing of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 282 of 2017

AKC17

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 Migration Act”) in respect of a decision made by the Immigration Assessment Authority (“the Authority”) under Part 7AA on 12 January 2017, affirming a decision of the delegate not to grant the applicant a protection 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 10 October 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Class XE visa on 10 March 2016.
The applicant claimed to fear harm because of his ethnicity, religion and for being from the east of Sri Lanka. The applicant claimed to fear harm as a Tamil from the East, previously domiciled in an LTTE controlled/active area and as a person who was previously suspected of LTTE involvement in 1999 when he was detained, questioned and mistreated. The applicant also alleged his ex-wife and her family, one of whom is a police officer, because of the breakdown of his marriage with his ex‑wife may harm him and the applicant fears harm by reason of his illegal departure and as a failed asylum seeker, including as a Tamil.
On 12 September 2016 a delegate found the applicant failed to meet the criteria for the grant of the visa and made adverse credibility findings in relation to the applicant’s claims. The delegate found that the applicant was not an excluded fast track applicant.

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: [2017] FCCA 2282
Decision Date: 19 September 2017

CaseChat Overview and Summary

The applicant, AKC17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. This involved examining whether the decision-maker failed to take into account a relevant consideration or took into account an irrelevant consideration when assessing the applicant's eligibility for the visa.

Judge Street found that the decision-maker had failed to properly consider a crucial piece of evidence submitted by the applicant, which was relevant to the assessment of the visa criteria. This failure constituted a jurisdictional error. The Court reasoned that the decision-maker's obligation was to consider all relevant material placed before them, and the omission of this significant evidence meant the decision was not made according to law.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders