CJF18 v Minister for Immigration - [2019] FCCA 2780

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJF18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2780

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority erred in considering new information considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 473DB, 473DC, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593
FIG17 v Minister for Home Affairs [2019] FCA 1105
Minister for Immigration v SZMTA (2019) 93 ALJR 252
Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481

Applicant:

CJF18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1291 of 2018

Judgment of:

Judge Driver

Hearing date:

27 September 2019

Date of Last Submission:

23 October 2019

Delivered at:

Sydney

Delivered on:

10 December 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application filed on 8 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1291 of 2018

CJF18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

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 10 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister.
The applicant is a national of Sri Lanka who claimed to be of Tamil ethnicity and a Hindu.[1] He arrived in Australia at Cocos (Keeling) Islands on 8 November 2012 as an unauthorised maritime arrival[2] and lodged a valid application for a Safe Haven Enterprise Visa (SHEV) on 19 July 2016.[3]
[1] Court Book (CB 63)
[2] CB 45, 63
[3] CB 25-62
In a statement provided with his SHEV application,[4] the applicant claimed to fear harm from the Sri Lankan authorities, including the Criminal Investigation Department (CID), on the basis of his “imputed connection” with the Liberation Tigers of Tamil Eelam (LTTE).
[4] CB 63-67
Between mid-2005 and 2008, the applicant lived in Mullaitheevu, an LTTE controlled area. In 2006, while he was at school, the applicant and other students were required to undertake self defence training with the LTTE. He claimed that he became scared during the training and ran away, and did not return to school because his parents feared he would be forcibly recruited by the LTTE. He stayed at his mother’s house for two years, kept a low profile and worked on the family farm to avoid the LTTE.
In 2008, the applicant moved to Vavuniya, which was under the control of…

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 2780
Decision Date: 10 December 2019

CaseChat Overview and Summary

The applicant, CJF18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm if returned to Sri Lanka. The IAA had disbelieved the applicant in certain respects and found other claimed fears to be not well-founded.

The central legal issue before Judge Driver was whether the IAA had committed a jurisdictional error in its consideration of the protection visa application. Specifically, the court was asked to determine if the IAA erred in its assessment of new information that had been presented to it.

Judge Driver found that the IAA had not committed a jurisdictional error. The Authority was entitled to consider the new information provided by the applicant and to assess its credibility and relevance in light of the existing evidence. The court concluded that the IAA's findings were open to it on the evidence before it and that its decision-making process did not involve a jurisdictional error.

The application for judicial review was dismissed.

Orders