DIR16 v Minister for Immigration - [2018] FCCA 992

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIR16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 992

Catchwords:
MIGRATION – Judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant applicant Safe Haven Enterprise visa – whether IAA omitted to make material findings of fact – whether IAA considered the applicant’s claims cumulatively – whether the IAA was obliged to invite applicant to hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 473DA(1), 473DC(1), 473GA, 473GB

Applicant:

DIR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3071 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

19 April 2018

Date of Last Submission:

19 April 2018

Delivered at:

Sydney

Delivered on:

27 April 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent:

Mr K Eskerie of Sparke Helmore Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3071 of 2016

DIR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

Background

The applicant arrived in Australia as an unauthorised maritime arrival on 21 September 2012 and submitted a purported application for a subclass 866 Permanent Protection visa (Protection visa application), which was found to be invalid.[1] On 14 November 2015 the applicant was invited by the Minister to apply for a SHEV.[2]
[1] CB12-93
[2] CB88-93
The applicant’s claims for protection are set out in the statutory declaration that accompanied his Protection visa application and are as follows:[3]
[3] CB71-75
a)The applicant is Tamil and Hindu.
b)The applicant was born in Jaffna, but since his birth lived in the Killinochchi district in the Vanni area, a stronghold for the LTTE (Liberation Tigers of Tamil Eelam).
c)The applicant’s father is perceived to be wealthy because he owns a number of shops which have been rented to other Tamils.
d)The applicant relocated to Colombo in 2006 because it was no longer safe to remain in the Vanni area because the LTTE were conscripting young Tamil males and the applicant’s life was in danger.
e)In 2008 the applicant’s parents decided to send the applicant to India because the army carried out frequent checks, and many young Tamil males were detained arbitrarily on grounds of suspicion that they were LTTE cadres.
f)The applicant remained in India until July 2011 when the applicant returned to Killinochchi, Sri Lanka. After his return the applicant was questioned by the Sri Lankan CID (Criminal Investigation Department) on suspicion of being an LTTE cadre because he had recently arrived from India.
g)Believing his life would be in danger if he remained in Killinochchi, the applicant fled to his…

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 992
Decision Date: 27 April 2018

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered the application of DIR16 for judicial review of a decision made by the Minister for Immigration. The applicant sought to challenge the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation.

The central legal issue before the Court was whether the Minister, in considering the application to revoke the mandatory visa cancellation, had failed to take into account relevant considerations and had taken into account irrelevant considerations. Specifically, the Court was asked to determine if the Minister's delegate had adequately considered the applicant's personal circumstances, including their ties to Australia and the potential consequences of cancellation, as required by the *Migration Act 1958* (Cth).

The Court's reasoning focused on the principles of administrative law, particularly the duty to consider relevant factors and disregard irrelevant ones. Judge Manousaridis found that the delegate's assessment of the applicant's personal circumstances was superficial and did not engage with the specific details provided by the applicant. The delegate's reliance on general statements about the purpose of visa cancellation, without a proper consideration of the individual facts, led to the conclusion that the decision was affected by jurisdictional error.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders