CDJ18 v Minister for Home Affairs - [2018] FCCA 2595

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDJ18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2595

Catchwords:

MIGRATION – Safe Haven Enterprise (Class XE)(Subclass 790) visa – application for review of Immigration Assessment Authority (IAA) affirming decision not to grant visa – show cause hearing – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 425, 473DC, 474

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05, 44.12, 44.13

Cases cited:

Applicant:

CDJ18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1122 of 2018

Judgment of:

Judge Kirton

Hearing date:

2 August 2018

Date of Last Submission:

2 August 2018

Delivered at:

Melbourne

Delivered on:

14 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent:

DLA Piper Australia

Solicitors for the Second Respondent:

Having filed a submitting notice

ORDERS

The Application is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1122 of 2018

CDJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding judicial review is sought of a decision of the Second Respondent (IAA) made on 26 March 2018. The IAA affirmed the decision of a delegate of the First Respondent (Minister) to refuse an application for a Safe Haven Enterprise (Class XE)(Subclass 790) visa.
The proceeding was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
I have determined that the proceeding should be dismissed. My reasons follow.

Background

The Applicant is a citizen of Vietnam and is now aged 23 years. He first left Vietnam and attempted to travel to Australia in around June 2012. He left Vietnam by boat but was arrested in Indonesia and was detained there for four to five months. He was then…

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 CDJ18 v Minister for Home Affairs 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: [2018] FCCA 2595
Decision Date: 14 September 2018

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Immigration Assessment Authority (IAA) affirming a delegate's decision not to grant a Safe Haven Enterprise visa. The IAA had affirmed the delegate's decision after considering the applicant's further submissions and statement, which it found did not contain new information. The applicant had also requested an interview, particularly if credibility concerns arose.

The court was required to determine whether the IAA erred in law by failing to grant the applicant an interview, and whether the IAA's decision that the applicant did not face a real chance of serious harm was affected by jurisdictional error. Specifically, the court considered whether the IAA was obligated to conduct a review if adverse credibility findings were to be made, and whether the applicant had a right to a hearing.

The IAA reasoned that its review was to be conducted "on the papers" and that the applicant did not have a right to a hearing. It noted that the applicant was represented throughout the process and that no specific new information requiring an interview was identified by the applicant's solicitor. The IAA was satisfied it had sufficient material to make a decision and did not make adverse credibility findings. While accepting the applicant's identity and his claims of discrimination and harassment based on his religion, the IAA concluded that these did not amount to serious harm as defined by the Act, particularly in light of country information suggesting an improved situation and the applicant's profile not fitting those at high risk. Similarly, regarding the applicant's parents' involvement in protests, the IAA found their profile did not indicate they were at high risk of harm.

Orders

Orders of the court

Full text does not contain this section.

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

On 26 March 2018 the IAA affirmed the Delegate’s Decision (IAA Decision). The IAA had regard to the Applicant’s Further Submission and Further Statement, however it considered that both reiterated the previous claims made in the Applicant’s SHEV application and responded to the findings of the Delegate and did not contain new information pursuant to s.473DC(1) of the Migration Act 1958 (Cth) (Act). The IAA considered the Applicant’s request for an interview, particularly if there were credibility concerns. The IAA noted that under the Act it is to conduct its review on the papers. It noted that the Applicant does not have a right to a hearing and there is no obligation on the IAA to conduct a review if adverse credibility findings are to be made. The IAA also noted that the Applicant was represented throughout the SHEV application process, including at the SHEV interview with the Delegate and that submissions had been put to the Minister’s department both before and after the SHEV interview. The IAA further noted that the Applicant’s Solicitor had not identified any new information that the IAA was to obtain at an interview, other than generally assessing the Applicant’s credibility. The IAA was satisfied that it had enough material before it to make a decision and was not satisfied that an interview to obtain further information was warranted. Further, the IAA noted that it had not made an averse finding as to the Applicant’s overall credibility. The IAA accepted the Applicant’s identity as claimed in his SHEV interview. The IAA did not draw any adverse conclusions from the Applicant’s initial provision of a false identity for the purposes of assessing his credibility or claims for protection. The IAA accepted that the Applicant is a practicing Catholic of Kinh ethnicity and that his home area is Nghe An province in Vietnam. The Applicant’s immigration and criminal history in Australia, including absconding from community detention and criminal conviction, were not adversely relied upon by the IAA. The IAA accepted the Applicant’s claims to have been discriminated against and harassed by the authorities based on his religion. However it did not accept that being asked for his identification and being delayed for church services amounted to serious harm within the meaning of the Act. The IAA noted that the Applicant was not otherwise harmed and was ultimately permitted to attend church and therefore was not prevented from practising his faith. Having regard to country information which indicated the situation had improved and that the Applicant’s profile did not fit those who were harassed and discriminated against, the IAA was not satisfied that the Applicant faced a real chance of serious harm based on his Catholic faith. The IAA accepted that the Applicant’s father worked as a fisherman and was affected by the toxic spill by the Taiwanese owned steel company Formosa in April 2016 and that his parents participated in protests on the environmental damage and the rights of Catholics. The IAA had regard to country information which indicated those at high risk of harm were active organisers or political opposition leaders. The IAA considered the Applicant’s parents did not have an adverse political or religious profile due to their past participation in any protests and was not satisfied his parents would engage in political, religious or environmental protests in the future.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.