CQJ17 v Minister for Immigration - [2020] FCCA 1438

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQJ17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1438

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed in part and other claims found not to be well-founded – whether the Authority erred in rejecting new information or overlooked an element of the applicant’s claims considered – no jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25
Migration Act 1958 (Cth), ss.5J, 46A, 65, 91R, 430, 473CB, 473CC, 473DB, 473DD, 473EA

Cases cited:

AUH17 v Minister for Immigration [2018] FCA 388

AUS17 v Minister for Immigration [2020] HCATrans 55

BRA16 v Minister for Immigration [2018] FCA 127

BVD17 v Minister for Immigration (2019) 93 ALJR 1091

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CAQ17 v Minister for Immigration [2019] FCAFC 203

CHF16 v Minister for Immigration (2017) 257 FCR 148

DYS16 v Minister for Immigration (2018) 260 FCR 260

Goundar v Minister for Immigration (2016) 160 ALD 123

Applicant:

CQJ17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1868 of 2017

Judgment of:

Judge Driver

Hearing date:

3 June 2020

Date of Last Submission:

17 June 2020

Delivered at:

Sydney

Delivered on:

30 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application as amended on 25 November 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1868 of 2017

CQJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND 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 30 May 2017. 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 the submissions of the parties.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 21 October 2012 and is an unauthorised maritime arrival.…

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 1438
Decision Date: 30 June 2020

CaseChat Overview and Summary

The applicant, CQJ17, 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 found parts of the applicant's claims not to be credible and other claims not to be well-founded.

The central legal issues before Judge Driver were whether the IAA had erred in its review of the protection visa application. Specifically, the court was asked to consider whether the Authority had made a jurisdictional error by rejecting new information provided by the applicant or by overlooking an element of the applicant's claims that had been considered.

Judge Driver found no jurisdictional error on the part of the IAA. The reasoning focused on the Authority's assessment of the evidence and the applicant's claims. The court determined that the IAA had properly considered the material before it and had not overlooked any relevant aspects of the applicant's case. The decision to refuse the protection visa was therefore upheld.

Orders