DDM17 v Minister for Immigration - [2018] FCCA 3542

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3542

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to exercise its powers under s 473DC of the Act – whether the Authority failed to exercise its discretion to get new information – whether the Authority failed to consider the applicant’s claims or integers of the applicant’s claims – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 476

Applicant:

DDM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 374 of 2017

Judgment of:

Judge Street

Hearing date:

3 December 2018

Date of Last Submission:

3 December 2018

Delivered at:

Perth

Delivered on:

3 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms S Scott

Solicitors for the Applicant:

Westside Legal

Counsel for the Respondents:

Mr P 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 $6,000.00.

DATE OF ORDER: 3 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 374 of 2017

DDM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 15 June 2017 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 the Trincomalee District, Eastern Province, who arrived in Australia on 3 November 2012.
The applicant claimed to fear harm based on his Tamil ethnicity, his former place of residence, his imputed Liberation Tigers of Tami Eelam (“LTTE”) involvement and connections, and/or his imputed or actual wealth, or that of his family. On 9 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 11 November 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did not do so.
The Authority in its reasons identified the background to the visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act and took into account country information. The Authority summarised the applicant’s claims and referred…

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 3542
Decision Date: 3 December 2018

CaseChat Overview and Summary

The applicant, DDM17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The dispute centred on whether the IAA had failed to properly exercise its powers and discretions under the *Migration Act 1958* (Cth) in assessing the applicant's claims. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The core legal issues before the Court were whether the IAA had failed to exercise its powers under section 473DC of the *Migration Act 1958* (Cth), whether it had failed to exercise its discretion to obtain new information relevant to the application, and whether it had failed to consider the applicant's claims or specific aspects of those claims. The applicant contended that these failures constituted jurisdictional error.

Judge Street found that the IAA had not made a jurisdictional error. The Court reasoned that the IAA had considered the material before it and had not failed to exercise its powers or discretions in a manner that would vitiate its decision. The amended application was therefore dismissed.

Orders