ANW19 v Minister for Immigration - [2020] FCCA 2085

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANW19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2085

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – whether the Authority made an unreasonable decision or erred in considering new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 473DC, 473DD

Cases cited:

ABH18 v Minister for Home Affairs [2020] FCA 620

AUH17 v Minister for Immigration [2018] FCA 388

BRA16 v Minister for Immigration [2018] FCA 127

BVZ16 v Minister for Immigration [2017] FCA 958

DLB17 v Minister for Home Affairs [2018] FCAFC 230

DZU17 v Minister for Immigration & Anor [2019] FCCA 491

Minister for Immigration v CED16 [2020] HCA 24

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZMTA (2019) 264 CLR 421

Applicant:

ANW19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 321 of 2019

Judgment of:

Judge Driver

Hearing date:

29 July 2020

Delivered at:

Sydney

Delivered on:

3 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr G Foster

Solicitors for the Applicant:

Sentil Solicitors

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application filed on 10 October 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 321 of 2019

ANW19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 25 January 2019. 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 Minister on 15 July 2020.
The applicant is a citizen of Sri Lanka born in April 1984.[1] He first arrived in Australia on 6 September 2012 as an unauthorised maritime arrival.[2] On 2 September 2016, he applied for the visa.[3]
[1] Court Book (CB) 49
[2] CB 110
[3] CB 36-72
In support of his application for the visa, the applicant raised, among other things, the following:[4]
a)he was forced to work with the LTTE[5] from 2003-2004 (as an administrative assistant) and 2005-2006 (as a tea maker). His brother, R, worked for the LTTE as a video editor and photographer from 2003-2006. Due to this, R was targeted by the CID[6] and paramilitary groups;[7]
b)in 2006, the CID attempted to take the applicant from his home but his mother and sister convinced them not to. The applicant feared for his life and departed Sri Lanka. The applicant returned in 2009;[8]
c)his brother R had been held by the CID in a rehabilitation centre, but was released. In August 2011, the CID visited the applicant’s home looking for R. The…

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: [2020] FCCA 2085
Decision Date: 3 September 2020

CaseChat Overview and Summary

The applicant, ANW19, 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. The core of the dispute concerned whether the IAA's decision was unreasonable or if it had erred in its consideration of new information presented by the applicant.

The primary legal issues before the Federal Circuit and Family Court of Australia were whether the IAA's adverse credibility findings were unreasonable, and whether the IAA had failed to properly consider or give sufficient weight to certain new information provided by the applicant. The court was also required to determine if any such unreasonableness or error constituted a jurisdictional error.

Judge Driver found that the IAA's decision was not unreasonable. The Authority had adequately explained its reasons for not accepting the applicant's claims, and its assessment of the evidence, including the new information, was within the bounds of reasonableness. The court held that the IAA had considered the new information and provided a rational basis for its conclusions. Consequently, no jurisdictional error was established.

Orders