Dij16 v Minister for Immigration - [2018] FCCA 3441

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIJ16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3441

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority complied with its statutory obligations – whether the Authority’s adverse findings were bias – whether the Authority identified the relevant law – whether the Authority failed to consider all of the applicant’s claims to fear harm – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant:

DIJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 555 of 2016

Judgment of:

Judge Street

Hearing date:

26 November 2018

Date of Last Submission:

26 November 2018

Delivered at:

Perth

Delivered on:

26 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms B Rayment

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

DATE OF ORDER: 26 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 555 of 2016

DIJ16

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 26 October 2016 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 Hindu, Tamil male from Jaffna, Northern Province who had also resided in Colombo and Saudi Arabia.
The applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012. The applicant lodged the application for the visa in the present case on 19 November 2015. The applicant attended an interview on 15 March 2016. On 26 July 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa.
On 2 August 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. No such documents were put on.
The Authority identified that the applicant fears harm on the basis of being a young Tamil male from the Northern Province and claims to be imputed by the Sri Lankan authorities to be a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant claims in 2009, he was detained by the Criminal Investigation Department (“CID”) and the Sri Lankan Police and held in detention. The applicant fears he will be detained at the airport by the authorities who will…

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 3441
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant, Dij16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around whether the IAA had fulfilled its statutory obligations in assessing Dij16's claims and whether the adverse findings made by the IAA were tainted by bias. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included whether the IAA had properly identified and applied the relevant law to Dij16's case, whether the Authority had considered all of the applicant's claims regarding a fear of harm, and whether any alleged bias on the part of the IAA constituted a jurisdictional error.

Judge Street found that the IAA had complied with its statutory obligations. The court reasoned that the IAA had adequately identified the relevant legal framework and had considered the claims made by Dij16. Furthermore, the court concluded that there was no evidence to support the assertion that the IAA's adverse findings were biased, and therefore, no jurisdictional error had been made out. Consequently, the application for judicial review was dismissed.

Orders