DFS16 v Minister for Immigration - [2018] FCCA 1628

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFS16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1628

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 critical respects and other fears found not to be well-founded – whether the Authority gave lawful consideration to the applicant’s claims considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 57, 91R

Cases cited:

Minister for Immigration v Li (2013) 297 ALR 225

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v WZAPN [2015] HCA 22

NAHI v Minister for Immigration [2004] FCAFC 10

SZLYT v Minister for Immigration [2009] FCA 76

SZTAL v Minister for Immigration (2017) 91 ALJR 936

SZTEQ v Minister for Immigration [2015] FCAFC 39

WZAVX v Minister for Immigration [2016] FCA 411

Applicant:

DFS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2974 of 2016

Judgment of:

Judge Driver

Hearing date:

20 June 2018

Delivered at:

Sydney

Delivered on:

9 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitors for the Applicant:

Lumbo Legal

Solicitors for the Respondents:

Ms K Evans of Mills Oakley

ORDERS

The application filed on 28 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2974 of 2016

DFS16

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 4 October 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the Minister filed on 13 June 2018.
The applicant is a male citizen of Sri Lanka, who applied for a SHEV on 10 February 2016.[1]
[1] Court Book (CB) 21-58
The applicant’s claims for protection were initially set out in a statutory declaration accompanying his SHEV application. In summary, the applicant claimed that he would be harmed by members of the Tamil Makkal Viduthalai Pulikal (TMVP) because he had supported a Tamil National Alliance (TNA) member (“Mr Y”) in the September 2012 Eastern provincial council elections and refused to let the Pillayan group (a faction of the TMVP) use his vehicle. The applicant claimed that two days after the election, members of the Pillayan group came to his home and hit him on the head, forcing him into hiding and leading to his decision to depart Sri Lanka for Australia. He claimed that the TMVP continued to look for him.
The applicant also claimed that in 2006, he was detained and beaten by the Sri Lankan Army on suspicion of a connection with the LTTE. Following this incident, the applicant claimed that he was required to report monthly to 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: [2018] FCCA 1628
Decision Date: 9 August 2018

CaseChat Overview and Summary

DFS16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a reason specified in section 5H(1) of the *Migration Act 1958* (Cth). This required the Court to assess the applicant's claims regarding their membership in a particular social group and the nature and likelihood of harm they might face upon return to their country of origin, considering the respondent's assessment of the country information.

Judge Driver's reasoning focused on the assessment of the applicant's credibility and the weight to be given to the country information. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent cases concerning the assessment of protection claims, including the standard of proof required for a well-founded fear. The Court considered whether the applicant's asserted fear was objectively reasonable in the circumstances, taking into account both the applicant's personal circumstances and the general situation in their country of origin.

The Court found that the applicant had not established a well-founded fear of persecution for a Convention reason. Accordingly, the application for judicial review was dismissed.

Orders