CAY16 v Minister for Immigration - [2020] FCCA 1423

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAY16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1423

Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority erred in failing to consider whether the Applicant would refrain from certain action due to a fear of harm – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J

Cases cited:

AKQ16 v Minister for Immigration & Anor [2019] FCCA 90
Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473; [2003] HCA 71
BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091; [2019] HCA 34
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176

Applicant:

CAY16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2021 of 2016

Judgment of:

Judge Barnes

Hearing date:

22 March 2019

Date of Last Submission:

6 November 2019

Delivered at:

Sydney

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Jones (direct access)

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Mills Oakley

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2021 of 2016

CAY16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Immigration Assessment Authority (the Authority) affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a Sri Lankan Tamil, arrived in Australia in August 2012. In September 2015 he lodged an application for a SHEV. In support of his application he relied on an earlier statutory declaration, dated 14 August 2013, in which he claimed to fear harm in Sri Lanka due to his ethnicity, political opinion and as a member of the particular social group of young Tamil men targeted by the Tamil Makkal Viduthalai Pulik (TMVP).
He claimed that when he was young, his brother had disappeared and was killed and that thereafter the Sri Lankan CID had regularly visited his family home and asked whether his brother had been a member of the Liberation Tigers of Tamil Eelam (the LTTE). He also claimed that on one occasion the Sri Lankan army had threatened to kill the family if they did not tell the “truth” that they were members of the LTTE who were holding weapons.
The Applicant claimed that in 2009 the TMVP had tried to recruit him. They stopped him on the road and asked him to get into their vehicle. He ran away. He claimed that they threatened his parents and sent increasingly threatening letters to his home.
He claimed that in August 2011 TMVP men captured him,…

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.

Keep reading for free

Create a free CaseChat account to read CAY16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1423
Decision Date: 5 June 2020

CaseChat Overview and Summary

The applicant, CAY16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned the IAA's assessment of CAY16's claims for protection visas, specifically whether the IAA had adequately considered the possibility that CAY16 might refrain from certain actions due to a fear of harm. The application was heard by Judge Barnes in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the IAA had erred in law by failing to consider, as part of its assessment of CAY16's claims, whether CAY16 would refrain from engaging in certain conduct due to a fear of harm. This question arose in the context of assessing whether CAY16 met the criteria for a protection visa.

Judge Barnes reasoned that the IAA's decision-making process, as evidenced in its published reasons, did not demonstrate a failure to consider the relevant legal principles. The court found that the IAA had properly applied the law to the facts before it, and that its assessment of CAY16's claims was not vitiated by any error of law. Consequently, the application for review was dismissed. The court also ordered that the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Orders

Orders of the court

1. The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.