DGB16 v Minister for Immigration - [2019] FCCA 248

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGB16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 248

Catchwords:
MIGRATION – Application for review of Immigration Assessment Authority (IAA) decision – applicant alleged that the IAA committed error in failing to consider a claim made by the applicant – whether the IAA committed jurisdictional error by finding that the totality of the applicant’s evidence was false – whether the IAA committed jurisdictional error by failing to distinguish a claim consistently made by the applicant – whether the IAA’s decision was illogical, irrational or unreasonable – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

Applicant:

DGB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2989 of 2016

Judgment of:

Judge Nicholls

Hearing date:

6 December 2018

Date of Last Submission:

6 December 2018

Delivered at:

Sydney

Delivered on:

6 February 2019

REPRESENTATION

Appearing for the Applicant:

Mr S Hodges

Solicitors for the Applicant:

Hodges Legal

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application made on 31 October 2016 and amended on 29 November 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2989 of 2016

DGB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on 31 October 2016 and amended on 29 November 2018 seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 4 October 2016 which affirmed the decision of the Minister’s delegate to refuse a Safe Haven Enterprise Visa (“SHEV”) to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister. (The Court Book – “CB”– “RE1”).

Background

The applicant is a citizen…

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 248
Decision Date: 6 February 2019

CaseChat Overview and Summary

The applicant, DGB16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The core of the dispute concerned allegations that the IAA had erred in its assessment of the applicant's claims, particularly in relation to the veracity of the evidence provided. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the IAA had committed jurisdictional error. This encompassed questions as to whether the IAA had improperly found the totality of the applicant's evidence to be false, whether it had failed to distinguish a claim consistently made by the applicant, and whether its decision was otherwise illogical, irrational, or unreasonable.

Judge Nicholls reasoned that the IAA was entitled to assess the credibility of the evidence presented. The Authority had considered the applicant's claims and evidence, and its findings regarding the falsity of the evidence were open to it on the material before it. The Court found no jurisdictional error in the IAA's approach, concluding that the decision was not illogical, irrational, or unreasonable.

Consequently, the application for judicial review was dismissed.

Orders