DLC17 v Minister for Home Affairs - [2018] FCA 1226

FEDERAL COURT OF AUSTRALIA
DLC17 v Minister for Home Affairs [2018] FCA 1226

Appeal from: DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791

File number: WAD 133 of 2018

Judge: BANKS-SMITH J

Date of judgment: 16 August 2018

Catchwords: MIGRATION – application for leave to appeal from summary dismissal of review application by Federal Circuit Court of Australia – where Immigration Assessment Authority affirmed Minister's refusal to grant safe haven visa – application dismissed

Legislation:
Migration Act 1958 (Cth) s 46A(2)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Cases cited:
AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

BPC16 v Minister for Immigration and Border Protection [2018] FCA 920

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791

Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; (1979) 24 ALR 577

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29

Date of hearing: 9 August 2018

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 33

Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter

Counsel for the First Respondent: Mr PR MacLiver

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

WAD 133 of 2018

BETWEEN:
DLC17

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

16 AUGUST 2018

THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant is to pay the first respondent's costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BANKS-SMITH J:

This is an application properly described as an application for leave to appeal from the decision of the Federal Circuit Court that summarily dismissed, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the applicant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse a safe haven enterprise visa (SHEV): DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791. The filed papers have proceeded on the basis that the proceedings are an appeal, but the applicant in fact requires leave to appeal, as r 44.12(2) provides that a summary dismissal under r 44.12(1)(a) is interlocutory.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in August 2012.
The Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the applicant to…

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] FCA 1226
Decision Date: 16 August 2018

CaseChat Overview and Summary

DLC17 has applied for leave to appeal against the Federal Circuit Court's summary dismissal of their application for judicial review of the Minister's refusal to grant them a safe haven visa. The applicant, a citizen of Sri Lanka, arrived in Australia in 2012 and applied for a safe haven visa after being refused a protection visa. The delegate of the Minister refused their application, and this decision was affirmed by the Immigration Assessment Authority. The Federal Circuit Court dismissed the application for judicial review under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

The central legal issue was whether the Federal Circuit Court correctly exercised its discretion to summarily dismiss the application for judicial review. The applicant argued that the court should have allowed the application to proceed to a substantive hearing on the merits. The respondent contended that the application was plainly without merit and should have been dismissed summarily.

The court found that the applicant's claims of persecution were not credible and lacked substantiation. The applicant had not provided any documentary evidence to support their claims, and their account was inconsistent and lacking in detail. The court held that the Federal Circuit Court was correct to summarily dismiss the application, as it was plainly without merit and there were no arguable grounds for review.

Accordingly, the application for leave to appeal was dismissed. The applicant was ordered to pay the respondent's costs if not agreed upon.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant is to pay the first respondent's costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an application properly described as an application for leave to appeal from the decision of the Federal Circuit Court that summarily dismissed, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the applicant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse a safe haven enterprise visa (SHEV): DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791. The filed papers have proceeded on the basis that the proceedings are an appeal, but the applicant in fact requires leave to appeal, as r 44.12(2) provides that a summary dismissal under r 44.12(1)(a) is interlocutory.Background The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in August 2012. The Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the applicant to lodge a valid application for, relevantly, a SHEV. The applicant by his solicitor and migration agent lodged an application. He attended an interview with a delegate of the Minister and was further interviewed by telephone in relation to claims concerning his father which were not tested at the first interview. A delegate of the Minister decided not to grant the applicant a SHEV. In accordance with s 473CA of the Act, the delegate's decision was referred to the Authority for review. The applicant's new migration agent provided a submission to the Authority in relation to the delegate's decision. Having had regard to the material provided by the Secretary under s 473CB of the Act and the submission provided on the applicant's behalf (save for aspects that comprised new information), the Authority affirmed the delegate's decision not to grant the applicant a protection visa by way of a SHEV.Before the Authority The applicant's protection claims can be summarised as follows:(a)in 1999 the applicant, a Tamil fisherman, relocated to Moonampiti by reason of conflict in the Mannar District;(b)the applicant and his family lived in areas controlled by the Liberation Tigers of Tamil Eelam (LTTE) and as a result the applicant and his family were suspected of having an involvement with the LTTE;(c)the applicant's uncle was detained by the Criminal Investigation Department (CID) in 2010 for two years;(d)in 2011 the applicant was asked by a naval person whether he was an LTTE Tiger and when he denied it, the person threw a cup of tea in his face;(e)in April 2012 while at a soccer ground, five officers from the CID accosted the applicant and he was slapped, before spectators intervened;(f)the applicant's father would drink and become violent and hit the applicant, but the applicant did not report episodes of the drunken violence to police as he did not want to involve police in the lives of his family, especially as they were Tamil;(g)the applicant fears persecution from the CID on the basis of being a Tamil and being imputed with an LTTE connection; and(h)he also fears persecution on the basis of his illegal departure and from his father.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791
File number:	WAD 133 of 2018
Judge:	BANKS-SMITH J
Date of judgment:	16 August 2018
Catchwords:	MIGRATION – application for leave to appeal from summary dismissal of review application by Federal Circuit Court of Australia – where Immigration Assessment Authority affirmed Minister's refusal to grant safe haven visa – application dismissed
Legislation:	Migration Act 1958 (Cth) s 46A(2) Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited:	AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791 Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; (1979) 24 ALR 577 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29
Date of hearing:	9 August 2018
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr PR MacLiver
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice
Solicitor for the Respondents:	Australian Government Solicitor

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	16 AUGUST 2018