COZ16 v Minister for Immigration - [2020] FCCA 514

FEDERAL CIRCUIT COURT OF AUSTRALIA

COZ16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 514

Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority – whether Authority failed to “properly” consider an integer of the Applicant’s claims such that it constructively failed to exercise jurisdiction.

Legislation:

Migration Act 1958 (Cth), s.473CB

Cases cited:

COZ16 v Minister for Immigration & Anor [2017] FCCA 979
COZ16 v Minister for Immigration and Border Protection (2018) 259 FCR 1; [2018] FCA 46
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457
NACP v Minister for Immigration and Indigenous Affairs (2003) 129 FCR 458; [2003] FCA 499
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389
SZVZN v Ministerfor Immigration and Border Protection [2017] FCA 954
Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 987

Applicant:

COZ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2479 of 2016

Judgment of:

Judge Barnes

Hearing date:

6 March 2019

Delivered at:

Sydney

Delivered on:

11 March 2020

REPRESENTATION

Solicitors for the Applicant:

Hodges Legal

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 16 August 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2479 of 2016

COZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) dated 16 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia in September 2012. In September 2013 he lodged a protection visa application which the Department found was invalid. In November 2015 he was invited to apply for a Temporary Protection visa or a Safe Haven Enterprise visa. He lodged an application for a Safe Haven Enterprise visa on 9 December 2015.
The Applicant had sworn a statutory declaration of 29 August 2013 in support of his 2013 application. He repeated and elaborated on his claims in a statutory declaration of 5 December 2015 and in his departmental interview. He claimed that he had lived in a Liberation Tigers of Tamil Eelam (LTTE) controlled area in Sri Lanka until 2009 when the Sri Lankan army defeated the LTTE, but that neither he nor his close family members were LTTE fighters or members. He claimed that in April 2009, after the Sri Lankan army surrounded the area, he…

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: [2020] FCCA 514
Decision Date: 11 March 2020

CaseChat Overview and Summary

The applicant, COZ16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The core of the dispute concerned whether the IAA had adequately considered all aspects of the applicant's claims, leading to an alleged constructive failure to exercise its jurisdiction. The matter was heard by Judge Barnes in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the IAA had "properly" considered an integer of the applicant's claims. This question required the court to determine the standard of consideration expected of the IAA and whether, by failing to meet that standard in relation to a specific part of the applicant's case, it had effectively failed to exercise its jurisdiction as required by law.

Judge Barnes reasoned that the IAA's obligation to consider an integer of the applicant's claims necessitated a substantive and not merely a superficial engagement with the material presented. The court found that the IAA's decision-making process, in this instance, had not sufficiently addressed a particular aspect of the applicant's submissions, thereby failing to undertake the comprehensive review mandated by its statutory role. Consequently, the court concluded that the IAA had constructively failed to exercise its jurisdiction. The court ordered that the decision of the IAA be set aside.

Orders