FEDERAL COURT OF AUSTRALIA
DIN16 v Minister for Home Affairs [2020] FCA 406
Appeal from: DIN16 v Minister for Immigration & Anor [2019] FCCA 1150 File number: NSD 769 of 2019 Judge: MARKOVIC J Date of judgment: 30 March 2020 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia affirming decision of Immigration Assessment Authority (Authority) – where Authority had affirmed decision of a delegate of Minister to refuse to grant a Safe Haven Enterprise visa – where appellant made a post-hearing submission to Authority – where Authority found that the post-hearing submission did not contain new information – whether primary judge erred in finding that the Authority had not unreasonably failed to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (Act) to invite the appellant to give new information – whether primary judge erred in finding that the Authority’s failure to assess the new information against the requirements of s 473DD of the Act was not material and did not constitute jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD, 473EA Cases cited:
BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35
BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43
EEM17 v Minister for Immigration and Border Protection (2018) 265 FCR 527
Minister for Immigration v CLV16 (2018) 260 FCR 482
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Date of hearing: 12 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 83 Counsel for the Appellant: Mr R Chia Counsel for the First Respondent: Mr B D Kaplan Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs ORDERS
NSD 769 of 2019 BETWEEN: DIN16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
30 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): DIN16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 1150 (DIN16). The Authority had affirmed a decision of a delegate of the first respondent (Minister) made on 29 July 2016 refusing…
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- AGLC
- DIN16 v Minister for Home Affairs [2020] FCA 406
- Case
- [2020] FCA 406
- Decision Date
CaseChat Overview and Summary
The court examined the legal issues concerning whether the IAA had unreasonably failed to consider whether to exercise its discretion to invite the appellant to give new information, and whether the IAA's failure to assess the new information against the requirements of s 473DD of the Act was material and constituted jurisdictional error. The court found that the IAA's failure to assess the new information against the requirements of s 473DD of the Act did amount to a jurisdictional error but held that there would be no utility in a remitter because the result of the review would not be different if the IAA had turned its mind to s 473DD of the Act and determined that it could not have regard to the UN Report.
The court concluded that the appellant had failed to make out any of his grounds of appeal and dismissed the appeal. The court also ordered that, as the appellant had been unsuccessful, he should pay the Minister's costs as agreed or taxed. The court made orders accordingly, dismissing the appeal and ordering the appellant to pay the Minister's costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The appellant submits that it is not clear whether the UN Report was considered by the Authority. He says that the UN Report discussed killings and other human rights atrocities committed by the Sri Lankan authorities and the failure of the Sri Lankan justice system to protect victims and witnesses and that it was directly relevant to his claims for protection and there was no independent basis for a decision which would have denied him the possibility of a favourable outcome. The appellant contends that in these circumstances it is enough that it was a realistic possibility that, had the Authority addressed the requirements of s 473DD of the Act, it may have undertaken a different course of fact finding and not necessarily have come to the same view about the merits of his claims. That is, the appellant says that he was denied the possibility of a favourable outcome.Consideration The appellant contends that there were two pieces of “new information” given to the Authority which it did not assess against s 473DD of the Act: the first was the claim included in the Submission that “[t]he authorities were somehow involved in the abduction the [appellant] witnessed”, i.e. the claim regarding the authorities’ involvement; and the second was the extract from the UN Report included in the Submission. It is convenient to deal with each of these pieces of information in turn.The claim regarding the authorities’ involvement The first issue that arises is whether this claim was “new information” as defined in s 473DC(1)(a) of the Act. The Minister says it was not new information because it was information that was before the Delegate when she made her decision under s 65 of the Act. The primary judge found at [95] of DIN16 that the claim regarding the authorities’ involvement was not new information. The following matters support that finding. First, in his interview with the Delegate the following exchanges took place in relation to the abduction of the appellant’s former employer’s son:Interpreter: Ok, so I didn’t like him and [V] was a very successful businessman, his brother wanted to do some sort of business. The other thing about him is that he had contacts with all people. Delegate: What do you mean?Interpreter: Ok, so he knew people from the Sri Lankan Police Force and the CID really well.Delegate: So did they abduct [P]?Interpreter: Yes they didDelegate: What happened to [P]?Interpreter: So I actually was too afraid to go back to my workplace and I was scared to go back to my room because l didn’t know what would happen to me because when the van went past me I saw someone pointing at me, and sorry he also said in direct answer to your question, “what happened to [P]” he said “I don’t know”.Delegate: So you haven’t seen him since that day?Interpreter: Ok, so when I was running they um pulled out a gun and they shot at me. Sorry can I just clarify that last sentence?Delegate: YesInterpreter: Yes that’s correct, ok. So I was just scared to go back to my workplace because I was wondering whether they would be in that area, whether they would be going around that area.Delegate: Did they try to abduct you? Interpreter: YesDelegate: How did they try to abduct you?Interpreter: Sorry l don’t understand I will have to ask again. So when they were abducting him I noticed his brother and then I just threw the food and I was running so they gave chase in the van and was shooting at me but I went through something like maybe an alley and disappeared.And:Delegate:Who, the uncle?Interpreter: Yes, and he knew very well that his brother was wealthy. Ok so I believe he tried to do this so that he could get some money. Ok so um ... ok this is not Tamil or Sinhalese it’s just ah ... I think he means he mixed with Sinhalese people as previously stated, police and CID, but he also mingled with undesirables ... how else can, I am not sure how to define.And:Interpreter: So he had a lot of influence with the police in Colombo so if I went and made a report with the police then I would have faced harm.Delegate:How do you know that [P’s] uncle had a lot of influence with the police?Interpreter: Because I worked there for 4 years so I knew certain things who he was moving with, that kind of information I had. So I am just wanting to answer and I am not sure if this included but um in Colombo if there were young Tamil boys working somewhere the CID would often arrest them on suspicion and on those occasions [V’s] brother would be the one to go and pay them some money and secure the release of that person.And:Interpreter: Ok I didn’t say that I could speak Sinhalese but I said I could understand when I was spoken to in Sinhalese. I was afraid to go to the state authorities because 1 feared that if I reported this matter because this man had so much influence with the police that the police could easily hand me over to him. I was afraid to go to the police because he has a lot of support from the police.