DCA17 v Minister for Immigration - [2019] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCA17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 696

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – Authority receiving updated DFAT country report as new information – certain other information not provided by the Secretary to the Authority – whether the Authority erred by not notifying the applicant of the new information and whether the Secretary’s breach of s.473CB(1) disabled the review considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 422B, 424A, 425, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 473GA, 473GB, 476

Cases cited:

AFK16 v Minister for Immigration & Anor [2016] FCCA 1826

BCQ16 v Minister for Immigration [2018] FCA 365

BDI17 v Minister for Immigration & Anor [2018] FCCA 2162

BHE17 v Minister for Immigration [2018] FCA 757

BMV16 v Minister for Home Affairs [2018] FCAFC 90

BSQ16 v Minister for Immigration [2018] FCA 469

BVD17 v Minister for Immigration [2018] FCAFC 114

BVZ16 v Minister for Immigration [2017] FCA 958

CCQ17 v Minister for Immigration [2018] FCA 1641

CMQ16 v Minister for Immigration [2018] FCA 881

CQR17 v Minister for Immigration [2019] FCAFC 61

DBE16 v Minister for Immigration [2017] FCA 942

DBE16 v Minister for Immigration & Anor [2017] FCCA 487

DCH17 v Minister for Immigration [2017] FCCA 294

DDQ17 v Minister for Immigration [2018] FCA 1223

DGZ16 v Minister for Immigration [2018] FCAFC 12

DYS16 v Minister for Immigration [2018] FCAFC 33

EVS17 v Minister for Immigration [2019] FCAFC 20

Minister for Immigration v BBS16 (2017) 257 FCR 111

Minister for Immigration v CPA16 [2019] FCAFC 40

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v DZU16 (2018) 253 FCR 526

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Minister for Immigration v SZVFW [2018] HCA 30

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

SZBEL v Minister for Immigration (2006) 228 CLR 152

VAAD v Minister for Immigration [2005] FCAFC 117

Applicant:

DCA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2171 of 2017

Judgment of:

Judge Driver

Hearing date:

20 March 2019

Date of last submission:

22 March 2019

Delivered at:

Sydney

Delivered on:

3 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The application filed on 11 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2171 of 2017

DCA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 23…

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: [2019] FCCA 696
Decision Date: 3 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa to the applicant, who claimed a fear of harm in Sri Lanka. The IAA had disbelieved parts of the applicant's claims and found other fears not to be well-founded. The IAA had received an updated Department of Foreign Affairs and Trade (DFAT) country report as new information, but certain other information was not provided by the Secretary to the IAA.

The central legal issues before the Tribunal were whether the IAA erred by failing to notify the applicant of the new DFAT country report and whether the Secretary's alleged breach of section 473CB(1) of the Migration Act 1958 (Cth) disabled the review process. The Tribunal was asked to consider if these matters constituted jurisdictional error.

The Tribunal found no jurisdictional error. It reasoned that the IAA was entitled to consider the updated DFAT report as new information. Furthermore, the Tribunal determined that even if there was a breach of section 473CB(1) by the Secretary in not providing certain information, this did not disable the review process or constitute a jurisdictional error on the part of the IAA. The Tribunal concluded that the review could proceed and the IAA's decision was not vitiated by jurisdictional error.

Orders