DIJ16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DIJ16 v Minister for Home Affairs [2019] FCA 1038

Appeal from: DIJ16 v Minister for Immigration & Anor [2018] FCCA 3441
File number: WAD 575 of 2018
Judge: MORTIMER J
Date of judgment: 4 July 2019
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse Safe Haven Enterprise (Subclass 790) visa – whether Authority failed to consider most recent country information – whether Authority failed to consider Prevention of Terrorism Act (Sri Lanka) – whether jurisdictional error – appeal allowed
Legislation:

Migration Act 1958 (Cth) ss 91K, 473CA, 473CC, Pt 7AA

Immigrants and Emigrants Act 1949 (Sri Lanka)

Prevention of Terrorism Act 1978 (Sri Lanka)
Cases cited:

Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

DIJ16 v Minister For Immigration & Anor [2018] FCCA 3441

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003 HCA 26; 214 CLR 496

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600

Singh v Minister for Home Affairs [2019] FCAFC 3
Date of hearing: 28 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 67
Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Mr T Lettenmaier
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 575 of 2018
BETWEEN:

DIJ16

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

4 JULY 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Federal Circuit Court dated 26 November 2018 be set aside, including the orders as to costs.

3.In lieu thereof, order:

(a)the second respondent’s decision dated 26 October 2016 be set aside; and

(b)the matter be remitted to the second respondent, differently constituted, for determination according to law.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MORTIMER J:

  1. This is an appeal from orders made by the Federal Circuit Court on 26 November 2018, dismissing the appellant’s application for judicial review and ordering him to pay the Minister’s costs in the fixed sum of $4,500.00: see DIJ16 v Minister For Immigration & Anor [2018] FCCA 3441.

  2. For the reasons set out below, the appeal will be allowed.

    Relevant background

  3. The appellant is a citizen of Sri Lanka and is of…

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Details
Case
[2019] FCA 1038
Decision Date

CaseChat Overview and Summary

In the case of DIJ16 v Minister for Home Affairs, the appellant, a Sri Lankan citizen of Tamil ethnicity, sought to appeal the decision of the Federal Circuit Court, which had affirmed the decision of the Immigration Assessment Authority to refuse his application for a Safe Haven Enterprise (Subclass 790) visa. The appellant, who arrived on Christmas Island by boat in 2012, had applied for a protection visa that was found to be invalid. He subsequently applied for the Safe Haven Enterprise visa, which was also refused. The appellant raised concerns about the Authority's failure to consider the most recent country information and the Prevention of Terrorism Act (Sri Lanka) in its decision-making process. Additionally, the appellant contended that there had been a jurisdictional error in the Authority's decision.

The court identified two primary issues for determination. First, whether the Authority had failed to consider the most recent country information in its decision. Second, whether the Authority had failed to consider the Prevention of Terrorism Act (Sri Lanka), and if so, whether this constituted a jurisdictional error. The court examined the submissions made by the appellant and the materials before it, including the Department of Foreign Affairs and Trade's Country Information Report for Sri Lanka and various affidavits. The court found that the Authority had indeed failed to consider the most recent country information and the relevant provisions of the Prevention of Terrorism Act (Sri Lanka). This omission constituted a jurisdictional error, as the Authority did not exercise its proper jurisdiction in making its decision.

The appeal was allowed, and the orders of the Federal Circuit Court were set aside. The decision of the Immigration Assessment Authority dated 26 October 2016 was also set aside. The matter was remitted to the Authority, differently constituted, for determination according to law. The court's decision highlighted the importance of ensuring that all relevant information and legal provisions are properly considered in the decision-making process to avoid jurisdictional errors.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Federal Circuit Court dated 26 November 2018 be set aside, including the orders as to costs.

3. In lieu thereof, order:

(a) the second respondent’s decision dated 26 October 2016 be set aside; and

(b) the matter be remitted to the second respondent, differently constituted, for determination according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, the appeal will be allowed.Relevant background The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived on Christmas Island by boat on 17 August 2012. The appellant applied for a protection (Class XA) visa on 18 July 2013 which was subsequently found to be invalid in accordance with s 91K of the Migration Act 1958 (Cth). The appellant was invited to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 9 September 2015, and applied for the SHEV on 19 November 2015. The appellant was interviewed by a delegate of the Minister on 15 March 2016 and was refused a protection visa in a decision made on 26 July 2016. The decision of the delegate was referred to the Immigration Assessment Authority in accordance with s 473CA of the Migration Act on 1 August 2016. The Authority affirmed the delegate’s decision to not grant the appellant a protection visa on 26 October 2016, and the appellant sought judicial review of the Authority’s decision on 7 November 2016. As I have noted, that judicial review application was dismissed on 26 November 2018, and on 10 December 2018 the appellant filed a notice of appeal in this Court. The appellant has been self-represented throughout this process, and was self-represented on this appeal. He was assisted by an interpreter during the hearing of the appeal. His notice of appeal contains the following ground:Jurisdictional error due to no following or facts presented. He did not file any written submissions on the appeal. He did, however, seek permission to hand up a letter. The Minister did not object to the letter being handed up and treated as a submission. It has been treated as a submission, although part of it is not legally relevant because it deals with contentions about the current situation in Sri Lanka for returning Tamils such as the appellant. The remainder of the letter repeats some of the contentions which were in the material provided by the appellant to the Federal Circuit Court, and which I deal with below. The terms of the letter were:1. I am the appellant in the above case.2. In furtherance of my appeal I wish to state the following facts:a.The Department of Immigration officials and those who by law looked into my case did not properly examine the evidence in regard to me or the general situation in Sri Lanka.b.I am suspected of having helped the LTTE while they were fighting for an independent state for the Sri Lankan Tamils.c.I did build bunkers for the LITE while they were in my village.d.The Sri Lankan army arrested and detained me as a result.e.While in detention I was subject to human right abuses and had no recourse to the courts of law as I was arrested under the Prevention of Terrorism Act.f.Even when I moved to Colombo the capital of Sri Lanka the army arrested me and on their instructions the CID followed me and arrested me. I was again beaten up and questioned.g.My brother [REDACTED] had been arrested by the Sri Lankan armed forces in Jaffna and harassed.3.It is due to these factors stated above that I fled and sought asylum in Australia.4.The situation in Sri Lanka is the same at the time I left the country and it continues to date. The Prevention of Terrorism Act is yet in vogue.5.The recent religious clashes in Sri Lanka have weakened the law and order situation in that country and have strengthened the hands of the Sri Lankan armed forces in dealing with the civilians. This puts Sri Lankan Tamils like me in danger of arrest and detention.6.I have therefore a great fear of being returned to Sri Lanka.7.I have no lawyers to assist me and had to seek the assistance of persons within my ethnic community to formulate my appeal into English.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is clear the appellant raised two matters before the Federal Circuit Court and raises them again here, one of which should lead to the appeal being allowed. The Minister’s counsel properly accepted that two matters had been raised before the Federal Circuit Court and, at least from the letter handed up at the appeal hearing if not from anything else, those two matters were pressed by the appellant in this Court. The Minister properly took no issue with the form of the notice of appeal in those circumstances.The Federal Circuit Court’s decision The Federal Circuit Court’s reasons accurately describe the Authority’s decision and reasons. From [16], the Federal Circuit Court reasons describe what occurred at the judicial review hearing, and what the appellant said to the Federal Circuit Court during that hearing. The reasons refer to two affidavits filed on behalf of the appellant and some documents handed up to the Federal Circuit Court during the hearing which were marked as exhibits. All these materials were before the Court on the appeal. The Court also had before it on appeal the Department of Foreign Affairs and Trade’s Country Information Report for Sri Lanka, dated 18 December 2015, which was the key piece of country information upon which both the delegate and the Authority relied. The appellant’s affidavits contained some submissions about the reliance on this report by the Authority, to which I refer in more detail below. From [20]-[25], the Federal Circuit Court reasons deal with the grounds of review as they were expressed in the originating application. There is no appellable error in this aspect of the Federal Circuit Court’s reasons. The Federal Circuit Court reasons then refer to an affidavit filed by the appellant with his judicial review application on 7 November 2016. That affidavit contains contentions about the errors made by the Authority. It relevantly states:1)I am the applicant in this case for a judicial review of the decision made by the immigration assessment authority on the 26th of October 2016.2)The Immigration Authority cited as the Second Respondent committed jurisdictional error by failure to exercise proper jurisdiction by:a)Not examining the provisions of the Prevention of Terrorism Act of Sri Lanka under which I was detained and which is mainly against the Sri Lankan Tamils who attempted to exercise their right of self-determination.b)The Second Respondent only examined the provisions of Immigration Emigration Act of Sri Lanka which has only a partial reference to persons like me who left the country without a passport.c)The Second Respondent did not examine the real situation of the Sri Lankan Tamils in that country by only depending on the report of the Department of Foreign Affairs and Trade in Australia and ignoring the reports on Sri Lanka by organisations like the Amnesty International, Asia Watch and the Oakland Institute in the USA which is an independent think-tank.d)The Second Respondent did not follow the UNHCR guidelines in assessing my claims for a Protection Visa in terms of the facts presented as a young Sri Lankan Tamil from the North of Sri Lanka perceived to have links with the LTTE.3)In this regard reference is made to the following paragraph of the Immigration Assessment Authority’s decision: 10, 11, 13, 14, 15, 16, 17, 18, 19, 23, 24, 27, 28, 29, 33, 34, 35 and 36.4)I have therefore a well-founded fear of persecution at the hands of the Sri Lankan army if I return to Sri Lanka.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.