CKM16 v Minister for Immigration - [2018] FCCA 3076

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKM16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3076

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision not to grant safe haven enterprise visa – whether Authority made jurisdictional error because applicant had not been provided with audio recording of entry interview – whether the Authority considered country information contained in untranslated documents submitted to the Authority – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 473CB, 473DD, 476

Cases cited:

BLA16 v Minister for Immigration and Border Protection [2018] FCCA 2808

Applicant:

CKM16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2349 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

24 October 2018

Date of Last Submission:

24 October 2018

Delivered at:

Sydney

Delivered on:

31 October 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent:

Ms K Hooper of Minter Ellison Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2349 of 2016

CKM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of Sri Lanka and a Tamil, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).

Claims for protection

The applicant stated his claims for protection on a number of occasions. It will be convenient to refer to the claims he made in a statement dated 6 November 2015 (Statement) that formed part of his application for a SHEV.[1] The applicant there stated as follows:
[1] CB70-74
a)Until 1995 the applicant lived in Jaffna. His father was a fisherman but the applicant heard from his father that before 1995 the applicant’s father had been beaten up by the Sri Lankan Army (SLA) because the he was involved in a group similar to the Tamil National Alliance (TNA), and would not participate in meetings organised by the SLA. That resulted in the applicant’s father being afraid to fish. The SLA constantly harassed the applicant and his family and asked for money.
b)In 1993 the applicant began to work as a fisherman with his uncle because the SLA would not allow the applicant’s family to continue their studies, and the applicant’s father was too scared to work. “Within two months” the SLA shot another of the applicant’s uncles when he was at sea fishing.
c)The applicant left Jaffna in 1995 and went to Vanni where he learned karate, acquiring a black belt by 2002. In that year he returned to Jaffna but he was there accused by the SLA of teaching…

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 3076
Decision Date: 31 October 2018

CaseChat Overview and Summary

The applicant, CKM16, sought judicial review of a decision by the Immigration Assessment Authority (Authority) which affirmed the refusal to grant a safe haven enterprise visa. The dispute centred on whether the Authority had committed a jurisdictional error in its assessment process.

The court was required to determine two primary legal issues. First, whether the Authority made a jurisdictional error by failing to provide the applicant with an audio recording of their entry interview. Second, whether the Authority committed a jurisdictional error by failing to consider country information contained in untranslated documents submitted by the applicant.

In its reasoning, the court found that the applicant had not been denied procedural fairness. The Authority was not obliged to provide the audio recording of the entry interview, as this was not a requirement under the relevant legislation or regulations. Furthermore, the court held that the Authority had adequately considered the country information provided, even if some documents were untranslated, as it was able to assess the relevant information from the translated portions and other available sources. Consequently, the court concluded that no jurisdictional error had occurred.

Orders