BIK18 v Minister for Home Affairs - [2019] FCCA 413

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIK18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 413

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 473CA, 473CB, 473DA, 473DD, 473GA, 473GB, 476, pt.7AA, div.3

Cases cited:

Applicant:

BIK18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 149 of 2018

Judgment of:

Judge Kendall

Hearing date:

18 January 2019

Date of Last Submission:

18 January 2019

Delivered at:

Perth

Delivered on:

18 January 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms A Ladhams

Second Respondent

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s originating application filed 19 March 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 149 of 2018

BIK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

Background

The applicant in these proceedings is a young Sri Lankan Tamil male. In November 2012, he arrived in Australia via Christmas Island as an unauthorised maritime arrival.
On 16 June 2016, the applicant lodged an application for a Safe Haven Enterprise Visa, a type of protection visa (“SHEV”). He claims to fear persecution in Sri Lanka because:
a)of his Tamil ethnicity;
b)he is from a former Liberation Tigers of Tamil Eelam (“LTTE”) controlled area;
c)of his imputed association with the LTTE; and
d)the authorities in Sri Lanka tried to extort money from him as he had a successful business.
The applicant attended an interview with a Ministerial delegate on 8 March 2017.

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 413
Decision Date: 18 January 2019

CaseChat Overview and Summary

The applicant, BIK18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to deny their application for a protection visa. The matter came before Judge Kendall of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the IAA had committed a jurisdictional error in its assessment of BIK18's protection visa application. BIK18 contended that the IAA's decision was vitiated by such an error.

Judge Kendall found no evidence of jurisdictional error on the part of the IAA. The Court's reasoning focused on whether the IAA had failed to exercise its jurisdiction, wrongly exercised its jurisdiction, or acted in a way that was so illogical or irrational that it amounted to a failure to exercise its jurisdiction. Having determined that the IAA had properly considered the material before it and applied the relevant legal principles, the application for judicial review was dismissed.

Orders