DCU18 v Minister for Home Affairs - [2019] FCCA 1458

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCU18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1458

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well founded – whether the Authority overlooked relevant material or an integer of the applicant’s claims and whether the Authority misunderstood the application of the Sri Lankan Protection of Terrorism Act considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36, 46A, 473CA, 473CB, 473DC, 473DD

Cases cited:

ASB17 v Minister for Home Affairs [2019] FCAFC 38
AYY17 v Minister for Immigration [2018] FCAFC 89
DPI17 v Minister for Home Affairs [2019] FCAFC 43

Maroun v Minister for Immigration (2009) 112 ALD 424

Minister for Immigration v CRY16 [2017] FCAFC 210

Minister for Immigration v DZU16 [2018] FCAFC 32
NABE v Minister for Immigration (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600; [2018] HCA 16

Applicant:

DCU18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 320 of 2018

Judgment of:

Judge Driver

Hearing date:

29 May 2019

Delivered at:

Perth

Delivered on:

29 May 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Ladhams of Australian Government Solicitor

ORDERS

The application filed on 14 June 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 320 of 2018

DCU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 11 May 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 8 May 2019.

Chronology

The applicant is a Tamil citizen of Sri Lanka who entered Australia at Cocos (Keeling) Islands on 14 October 2012 and is an unauthorised maritime arrival.[1]
[1] Court Book (CB) 23, 49, 169
On 12 August 2016 the Minister’s Department sent to the applicant an invitation to accept assistance through the “Primary Application and Information Service”.[2] By that letter, the applicant was advised that the Minister had exercised the discretion in s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow him to make an application for a protection visa.[3]
[2] CB 26-27
[3] CB 27
On 24 November 2016 the applicant lodged an application for a protection visa.[4]
[4] CB 33-87, 98
The applicant was invited to an interview before the delegate on 20 October 2017.[5] On 3 November 2017, following 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.

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Details

Case: [2019] FCCA 1458
Decision Date: 29 May 2019

CaseChat Overview and Summary

The applicant, DCU18, 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, but the IAA had found these fears not to be well-founded. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the IAA had committed jurisdictional error by overlooking relevant material or an integral part of the applicant's claims, and whether the IAA had misunderstood the application of Sri Lanka's Prevention of Terrorism Act.

Judge Driver found that the IAA had not committed jurisdictional error. The Authority had considered the material before it, including the applicant's claims and the relevant Sri Lankan legislation. The court determined that the IAA's assessment of the applicant's fears was open to it on the evidence, and that there was no demonstrable misunderstanding of the Prevention of Terrorism Act that vitiated the decision.

The application for judicial review was dismissed.

Orders