DIN19 v Minister for Immigration - [2021] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIN19 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 1

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority failed to have regard to the most up to date country information or failed to have regard to a submission or whether the Secretary failed to send relevant material to the Authority considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 473DB, 473DC, 473FA, 473FB

Cases cited:

ABT17 v Minister for Immigration [2020] HCA 34

AUF18 v Minister for Immigration [2019] FCAFC 222

DIJ16 v Minister for Home Affairs [2019] FCA 1038

DJU20 v Minister for Immigration [2019] FCA 2220

DNA17 v Minister for Immigration [2019] FCAFC 146

DPI17 v Minister for Home Affairs (2019) 269 FCR 134

DUZ17 v Minister for Home Affairs [2019] FCA 1593

EMJ17 v Minister for Immigration [2018] FCA 1462

EVS17 v Minister for Immigration (2019) 163 ALD 422

Hossain v Minister for Immigration (2018) 92 ALJR 780

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZVFW (2018) 163 ALD 1

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Applicant:

DIN19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 346 of 2019

Judgment of:

Judge Driver

Hearing date:

17 November 2020

Delivered at:

Sydney

Delivered on:

2 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr A McBeth

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 19 August 2019 into this court, for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 346 of 2019

DIN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

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 19 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 17 August 2012.[1] On 10 January 2013, he attended an Irregular Maritime Arrival Entry Interview (entry interview).[2] On 18 July 2013, the applicant lodged a protection (class XA)…

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: [2021] FCCA 1
Decision Date: 2 February 2021

CaseChat Overview and Summary

The applicant, DIN19, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm if returned to Sri Lanka, but the IAA had found these fears not to be well-founded. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had committed jurisdictional error by failing to have regard to the most up-to-date country information available, or by failing to consider a specific submission made by the applicant. Additionally, the Court considered whether the Secretary had failed to provide relevant material to the IAA for its consideration.

Judge Driver found that jurisdictional error had been established. The reasoning involved an assessment of the material before the IAA and the applicant's submissions, leading to the conclusion that the Authority had not properly considered all relevant information in accordance with its statutory obligations. The Court determined that the failure to have regard to the most up-to-date country information or a specific submission constituted a jurisdictional error.

The Court made orders setting aside the decision of the Immigration Assessment Authority.

Orders