DKA18 v Minister for Immigration - [2020] FCCA 8

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKA18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 8

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority made an irrational finding or erred in considering whether to accept new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.46A, 65, 473DD

Cases cited:

AKK17 v Minister for Immigration (2017) 327 FLR 343

Appellant S395 v Minister for Immigration (2003) 216 CLR 473

AQU17 v Minister for Immigration (2018) 162 ALD 442

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CED15 v Minister for Immigration [2018] FCA 451

CHF16 v Minister for Immigration (2017) 257 FCR 148

CQY16 v Minister for Immigration (2017) 326 FLR 263

Minister for Immigration v BBS16 (2017) 257 FCR 111

Minister for Immigration v WZARH (2015) 256 CLR 326

Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217

Applicant:

DKA18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1905 of 2018

Judgment of:

Judge Driver

Hearing date:

6 December 2019

Delivered at:

Sydney

Delivered on:

29 January 2020

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu of Hodges Legal

Solicitors for the Respondents:

Mr J Pinder of Minter Ellison

ORDERS

The application as amended on 11 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1905 of 2018

DKA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 22 June 2018. 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 relating to this matter is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 4 November 2012 and is an unauthorised maritime arrival. The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. On 15 July 2016 the applicant applied for a SHEV.[1]
[1] Safe Haven Enterprise Visa; court book (CB 52)
On 24 August 2017 the delegate of the Minister refused to grant the applicant a SHEV.[2] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review. On 22 June 2018, the Authority affirmed the decision under review.[3]
[2] CB 185
[3] Supplementary Court Book (SCB 339)

Applicant’s claims

The applicant claimed that he was imputed with support of the LTTE[4] due to familial former association with that organisation and because he is a Tamil. The applicant claimed to fear…

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 8
Decision Date: 29 January 2020

CaseChat Overview and Summary

The applicant, DKA18, 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 in Sri Lanka, but the IAA had disbelieved parts of their account and found other claimed fears to be not 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 made an irrational finding in its assessment of the applicant's claims, and whether the Authority had erred in its consideration of new information that had been presented. The applicant contended that these issues constituted jurisdictional error.

Judge Driver found that the IAA's decision did not involve jurisdictional error. The Authority had adequately considered the evidence before it, including the new information, and its findings were open to it on the evidence presented. The court determined that the IAA's assessment of the applicant's credibility and the well-foundedness of their fears was a matter of fact and degree, which did not amount to an irrational finding or a failure to consider relevant material in a way that would constitute jurisdictional error.

The application for judicial review was dismissed.

Orders