CVV16 v Minister for Immigration - [2018] FCCA 3451

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3451

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether there was a constructive failure by the Authority to exercise jurisdiction – whether the Authority misconstrued or misapplied s.473DD(b) – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant:

CVV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 455 of 2016

Judgment of:

Judge Street

Hearing date:

26 November 2018

Date of Last Submission:

26 November 2018

Delivered at:

Perth

Delivered on:

26 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Crowley

Solicitors for the Applicant:

AUM Legal

Counsel for the Respondents:

Mr PJ Hannan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 26 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 455 of 2016

CVV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 September 2016 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 was found to be a Tamil from Jaffna Northern Province of Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 13 October 2012.
The applicant claimed to fear harm on account of his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of certain social groups comprising failed Tamil asylum seekers and persons who have illegally departed Sri Lanka.
On 25 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. Part of the applicant’s claims involved a particular incident on 17 January 2010 at which time the applicant alleged he was detained and tortured. After 12 days, the applicant alleged he returned to a bus station and that his father was contacted by an unknown person and that when his father arrived, the applicant was taken to hospital.
In support of that claim, paragraph 24 of the applicant’s statement of protection claims at page 48 of the Court Book, referred to that alleged incident, and claimed that he tried to get a medical assessment done so he could give it to the Australian government and that he has a human rights letter that he will bring to the interview. The applicant also alleged in paragraph 25 that people…

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 3451
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant, CVV16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to dismiss an amended application for a Safe Haven Enterprise visa. The core of the dispute concerned whether the IAA had constructively failed to exercise its jurisdiction or had misconstrued or misapplied section 473DD(b) 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 constructively failing to exercise its jurisdiction in assessing the applicant's visa application; and second, whether the IAA's interpretation and application of section 473DD(b) constituted a jurisdictional error.

Justice Street found that the IAA had not constructively failed to exercise its jurisdiction. The Authority had engaged with the amended application and made a decision based on its assessment. Furthermore, the court held that the IAA had not misconstrued or misapplied section 473DD(b). The Authority's approach to the amended application was found to be within its lawful powers, and therefore, no jurisdictional error was identified.

Consequently, the amended application for the Safe Haven Enterprise visa was dismissed.

Orders