CDW18 v Minister for Home Affairs - [2018] FCCA 2334

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDW18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2334

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s circumstances in the reasonably foreseeable future – whether the Authority failed to exercise its powers under s 473DC of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 5J, 36, 473CB, 473DC, 473DD, 473EA, 476.

Cases cited:

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

Applicant:

CDW18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1207 of 2018

Judgment of:

Judge Street

Hearing date:

22 August 2018

Date of Last Submission:

22 August 2018

Delivered at:

Sydney

Delivered on:

22 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser
Direct access basis

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

Grant leave to the applicant to rely upon the amended application annexed to the submissions filed on 10 August 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 22 August 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1207 of 2018

CDW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 27 March 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 8 September 2012. The applicant was found to be a Catholic Tamil from the Northern Province and lived in a small town under the Liberation Tigers of Tamil Eelam (“LTTE”) control. The LTTE tried to recruit the applicant but he refused. The applicant fears that he will be captured and locked away or shot on being required to attend a Sri Lankan Army (“SLA”) camp for questioning.
The applicant claims to fear harm because of his Tamil ethnicity and/or perceived links to the LTTE and by reason of being a failed asylum seeker who departed Sri Lanka illegally. The applicant also claimed to fear harm by reason of having attended LTTE Martyrs commemoration days in Auburn and Silverwater, and the applicant feared that the information would have been passed to the authorities and he will be imprisoned and harmed because he will be linked with the LTTE having participated in Martyrs'…

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: [2018] FCCA 2334
Decision Date: 22 August 2018

CaseChat Overview and Summary

The applicant, CDW18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around whether the IAA had adequately considered the applicant's circumstances in the reasonably foreseeable future and whether it had properly exercised its powers under section 473DC of the Migration Act 1958 (Cth).

The court was required to determine two primary legal issues: first, whether the IAA committed a jurisdictional error by failing to consider the applicant's circumstances in the reasonably foreseeable future when assessing their visa application; and second, whether the IAA failed to exercise its powers under section 473DC of the Act, which would also constitute a jurisdictional error.

Justice Street found that the IAA had not made a jurisdictional error. The court reasoned that the IAA's decision-making process, as evidenced in the material before the court, demonstrated that it had considered the relevant factors, including those pertaining to the reasonably foreseeable future. Furthermore, the court concluded that the IAA had properly exercised its powers under section 473DC of the Act. Consequently, the amended application for judicial review was dismissed.

Orders