AUI17 v Minister for Immigration - [2019] FCCA 2997

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUI17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2997

Catchwords:
MIGRATION – Protection visa – three applicant brothers seek visas – where grounds unparticularised and do not expose error in decision of Immigration Assessment Authority – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5, 36, 65, 473DC, 474, 476

Cases cited:

BMV16 v Minister for Home Affairs [2018] FCAFC 90

BYM16 v Minister for Immigration and Border Protection [2018] FCA 326

Craig v South Australia (1995) 184 CLR 163

CRW16 v Minister for Immigration and Border Protection [2018] FCA 710

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

First Applicant:

AUI17

Second Applicant:

AUJ17

Third Applicant:

AUK17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 362 of 2017

Judgment of:

Judge A Kelly

Hearing date:

14 October 2019

Date of Last Submission:

14 October 2019

Delivered at:

Melbourne

Delivered on:

24 October 2019

REPRESENTATION

The Applicants:

In Person

Solicitor Advocate for the Respondents:

Mr Young

Solicitors for the Respondents:

Mills Oakley

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 23 February 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 862 of 2017

AUI17

First Applicant

AUJ17

Second Applicant

AUK17

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 23 February 2017, the applicants who are brothers, seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 January 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant them Protection visas pursuant to s 65 of the Migration Act 1958 (Act).
The applicants, who are Sri Lankan citizens now aged 23, 20 and 17 years respectively are Tamils from a small village in Puttalam, North Western Province of Sri Lanka. Their parents are Hindu, and their grandmother is of the Christian Pentecostal faith.
The applicants claim that their village consisted mainly of Muslim and Sinhalese inhabitants and that they belonged to one of the few Tamil families in that village. Their parents conducted a small business making incense sticks which they sold for distribution throughout Sri Lanka.
On 29 April 2013, the applicants first came to Australia as unauthorised maritime arrivals.…

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 2997
Decision Date: 24 October 2019

CaseChat Overview and Summary

The applicants, three brothers, sought protection visas. The Minister for Immigration opposed their applications. The matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia.

The central legal issue was whether the Immigration Assessment Authority (IAA) had erred in dismissing the applicants' claims for protection visas. Specifically, the court was required to determine if the grounds upon which the applicants based their claims were sufficiently particularised to demonstrate an error in the IAA's decision.

Judge Kelly found that the grounds advanced by the applicants were not particularised in a manner that exposed any error in the IAA's assessment. The court concluded that the applications for protection visas were therefore without merit. The applications were dismissed.

Orders