Dju20 v Minister for Immigration - [2020] FCCA 2635

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJU20 v MINISTER FOR IMMIGRATION & ORS

[2020] FCCA 2635

Catchwords:
MIGRATION – Application for judicial review of decision of Independent Assessment Authority (IAA) affirming decision of delegate not to grant Safe Haven Enterprise (subclass 790) visa – whether Secretary of the Department (Secretary) gave to the IAA statutory declaration made by the applicant that formed part of a previous but invalid application for a visa – whether Secretary considered whether statutory declaration was relevant to the IAA’s review of the delegate’s decision – whether by not considering the relevance of the statutory declaration the Secretary failed to comply with s.473CB(1)(c) of the Migration Act 1958 (Cth) – whether exercise of IAA’s jurisdiction to review delegate’s decision was conditioned by the Secretary’s strict compliance with s.473CB(1)(c) – whether the Secretary’s giving the statutory declaration to the IAA could have made any difference to the outcome of the IAA’s review – whether assuming the Secretary did consider whether the statutory declaration was relevant to the IAA’s review it was reasonably open to the Secretary to consider the statutory declaration was not relevant to the review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 46, 46A, 47, 65, 91K, 418, 418(3), 473, 496(2)

Public Service Act 1999 (Cth), s.57
Acts Interpretation Act 1901 (Cth), s.19A(1)

Cases cited:

McLean Bros & Regg Ltd v Grice (1906) 4 CLR 835

SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103

Applicant:

DJU20

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

Third Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 2181 of 2020

Judgment of:

Judge Manousaridis

Hearing date:

11 August 2017

Date of Last Submission:

11 August 2017

Delivered at:

Sydney

Delivered on:

17 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Solicitors for the Applicant:

Labour Pains Legal

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Mills Oakley

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2181 of 2020

DJU20

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Introduction

The question in this application for judicial review is whether, when affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV), the second respondent (IAA) made a jurisdictional error because a statutory declaration the applicant made that formed part of a previous but invalid application for a protection visa was not included in the material that was given to the IAA purportedly pursuant to s.473CB of the Migration Act 1958 (Cth) (Act).

Background

The applicant is a national of Sri Lanka, a Tamil, and a…

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: [2020] FCCA 2635
Decision Date: 17 September 2020

CaseChat Overview and Summary

The applicant, Dju20, sought judicial review of a decision by the Independent Assessment Authority (IAA) which affirmed a delegate's refusal to grant a Safe Haven Enterprise visa. The core of the dispute concerned whether the Secretary of the Department of Immigration had provided the IAA with a statutory declaration made by the applicant as part of a previous, invalid visa application, and whether the Secretary had considered its relevance to the IAA's review. Dju20 argued that the Secretary's failure to consider the relevance of this statutory declaration breached section 473CB(1)(c) of the *Migration Act 1958* (Cth), thereby invalidating the IAA's jurisdiction.

The legal issues before the court were whether the Secretary had provided the statutory declaration to the IAA, whether the Secretary had considered its relevance to the IAA's review, and if not, whether this failure constituted a breach of section 473CB(1)(c) of the *Migration Act*. The court was also required to determine if the IAA's jurisdiction was strictly conditioned on the Secretary's compliance with this provision, and whether the inclusion of the statutory declaration could have altered the outcome of the IAA's review. Finally, the court considered whether, assuming the Secretary had considered the declaration's relevance, it was reasonably open to conclude it was not relevant.

The court reasoned that the evidence did not establish that the Secretary had provided the specific statutory declaration from the previous application to the IAA. Furthermore, the court found that even if the declaration had been provided, it was reasonably open to the Secretary to consider it irrelevant to the IAA's review of the delegate's decision. This was because the delegate's decision had focused on the credibility of the applicant's claims regarding detention and torture, and the earlier statutory declaration was largely identical to the one considered in the current application. The court concluded that the Secretary's actions did not prevent the IAA from exercising its jurisdiction, nor did they render the IAA's decision invalid.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant applied for a SHEV on 17 September 2015.[7] It was accompanied by a statutory declaration made by the applicant in which he stated his claims for protection (2015 Statutory Declaration).[8] The 2015 Statutory Declaration is largely identical with the 2013 Statutory Declaration.[9] The applicant made the following claims:a)The applicant was born in Jaffna where he lived until 1996 when he and his family moved to Vanni. The applicant stayed there for two years when he moved to Mannar.b)In 2006, while the applicant’s mother, father, and brother were driving by motorbike, a “white van came and rounded them up”. The applicant’s father was beaten as a result of which he was badly injured, lost one eye, and stopped working.c)While in Mannar the applicant’s cousin was forced to join the Liberation Tigers of Tamil Eelam (LTTE). The cousin fought, he was injured, and taken prisoner by the Sri Lankan Army (SLA) who detained him until July 2010. After his release the applicant’s cousin stayed with the applicant. In the meantime the applicant’s cousin’s brother was taken by the SLA on suspicion of being a member of the LTTE.d)While the applicant’s cousin stayed at the applicant’s house the Sri Lankan “intelligence authorities” came to the applicant’s house regularly, and they questioned him accusing him of being in the LTTE and helping them. He was invited to attend an intelligence camp under the pretence of requesting him to carry out mechanical work, but when he arrived he was interrogated and tortured. They threatened to do to the applicant what they did to the applicant’s cousin. The applicant was released but the applicant attended the camp on a further four occasions during which he was interrogated and, on one occasion, again tortured.e)The applicant then realised it was not safe for him to stay in Sri Lanka. On the advice of his mother the applicant left Sri Lanka and came to Australia by boat.[7] CB1-25-68[8] CB1-63-68[9] Applicant’s Submissions, [8] The delegate did not accept the applicant’s claims and, on 1 April 2016, rejected his application for a SHEV. Although the delegate accepted it was plausible that in 2008 the applicant might have been detained for a brief time for questioning about a motorcycle bomb that had detonated in Manipay, the delegate did not accept the applicant had been repeatedly detained, tortured, and accused of being a LTTE supporter or potential bomb maker. Nor did the delegate accept that the applicant’s cousin’s brother had been detained. The delegate found the applicant had provided contradictory evidence regarding the instances he claimed to have been detained.[10][10] CB1-30, [34] The delegate’s decision was referred to the IAA on 4 April 2016. There is in evidence a copy of a document titled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (Checklist). The Minister produced this document in answer to a notice to produce which called for the production of, among other things, “correspondence including emails relating to the constitution and provision of ‘review material’ by the secretary to the Authority pursuant to s 473CB Migration Act”. Under the heading “File format”, the Checklist states that the “applicant file is contained in a PDFP”, which the Checklist notes stands for “PDF Portfolio”. Under the heading “The PDFP contains the following material” there is a table divided into three columns. The first column, which is headed “Description”, describes documents, the second, which is headed “Status”, provides for the noting of “Yes”, “No”, or “N/A”, and the third is titled “Non-disclosure considerations”. Relevant to the proceeding before me is the document the Checklist describes as “Any referenced visa applications made by the applicant” to which the status of “N/A” is assigned.