DBP16 v Minister for Immigration - [2018] FCCA 3566

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBP16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3566

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority engaged in irrational or illogical reasoning – whether the Authority failed to constructively exercise its jurisdiction – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 47CB, 476

Applicant:

DBP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 494 of 2016

Judgment of:

Judge Street

Hearing date:

4 December 2018

Date of Last Submission:

4 December 2018

Delivered at:

Perth

Delivered on:

4 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Guo

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Ms C Walsh

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: 4 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 494 of 2016

DBP16

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 12 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 of Hindu faith from the Kilinochchi Northern Provence. The applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012.
The applicant claimed to fear harm from the Sri Lankan authorities, in particular the Criminal Investigation Division (CID) on account of his perceived association with the Liberation Tigers of Tamil Eelam (LTTE) and his Tamil ethnicity. The applicant alleged that his sister was in the LTTE, but that he told the LTTE that he was in the LTTE to allow his sister to continue her university studies. The applicant alleged he was detained by the CID for five days or so in March 2012 and subject to ongoing reporting.
On 26 July 2016, the delegate found the applicant failed to meet the criteria for the grant of Safe Haven Enterprise visa.
On 1 August 2016, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such material was put on.
The Authority, in its reasons, identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the

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.

Keep reading for free

Create a free CaseChat account to read DBP16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3566
Decision Date: 4 December 2018

CaseChat Overview and Summary

The applicant, DBP16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to dismiss their application for a Safe Haven Enterprise visa. The application was brought before the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had engaged in irrational or illogical reasoning in its assessment of the applicant's case, and whether the IAA had failed to constructively exercise its jurisdiction. These questions were directed at identifying potential jurisdictional error on the part of the IAA.

Justice Street found that the IAA's reasoning was neither irrational nor illogical, and that the Authority had constructively exercised its jurisdiction. Consequently, no jurisdictional error was identified. The Court therefore dismissed the applicant's amended application.

Orders