BRC17 v Minister for Immigration - [2019] FCCA 218

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRC17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 218

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – consideration of a preliminary question whether the jurisdiction of the Authority was enlivened – question answered in the affirmative.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.47, 65, 66, 67, 368, 473BB, 473CA, 473CC

Cases cited:

ACS18 & Ors v Minister for Immigration & Anor [2018] FCCA 1420

AEW18 v Minister for Home Affairs & Anor [2018] FCCA 1842

Brar v Minister for Immigration & Anor [2018] FCCA 2272

DQX16 v Minister for Immigration & Anor [2018] FCCA 1915

He v Minister for Immigration [2017] FCAFC 206

Minister for Immigration v SZVCH (2016) 244 FCR 366

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Romero v Minister for Home Affairs & Anor [2018] FCCA 1116

Singh v Minister for Immigration [2015] FCA 220

Applicant:

BRC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1185 of 2017

Judgment of:

Judge Driver

Hearing date:

7 November 2018, 4 February 2019

Delivered at:

Sydney

Delivered on:

28 February 2019

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents:

Mr C Lenehan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The answer to the preliminary question raised, pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), is “yes”.
Costs of the determination of the preliminary question are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1185 of 2017

BRC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 22 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant two referred applicants protection visas. The present applicant was the principal applicant before the Authority. The second visa applicant is not an applicant before the Court.
The following statement of background facts is derived from initial written submissions filed on behalf of the applicant on 31 October 2018.
The applicant is a male, born in Jaffna District, in the Northern province of Sri Lanka on 30 November 1978, and is a citizen of Sri Lanka of Tamil ethnicity.[1]
[1] Court Book (CB) 1
The applicant arrived in Australia at Christmas Island without a valid visa by boat on 28 September 2012 and applied for a SHEV[2] on 15 October 2015.[3]
[2] Safe Haven Enterprise Visa
[3] CB 141-175
The delegate refused to grant the visa on 30 August 2016.[4]
[4] CB 238
The delegate’s decision was reviewed by the Authority. The Authority affirmed the delegate’s decision and refused to grant the applicant a visa 22 March 2017.[5]
[5] CB 326

The applicant’s claims

The applicant’s claims include the following:[6]
a)if returned to Sri Lanka, the 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: [2019] FCCA 218
Decision Date: 28 February 2019

CaseChat Overview and Summary

The applicant, BRC17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The primary dispute concerned whether the IAA had validly exercised its jurisdiction in considering BRC17's protection visa application. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the IAA had correctly determined that its jurisdiction was enlivened to review BRC17's protection visa application. This preliminary question was critical, as a negative finding would have meant the IAA lacked the power to proceed with the substantive assessment of the visa refusal.

Judge Driver reasoned that the IAA had correctly applied the relevant legislative provisions and established legal principles in determining that its jurisdiction was enlivened. The Court found that the preconditions for the IAA's review had been met, allowing the Authority to proceed with its assessment of the protection visa application. The Court therefore answered the preliminary question in the affirmative.

Orders