DLC17 v Minister for Immigration - [2018] FCCA 791

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLC17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 791

Catchwords:
MIGRATION – Show cause hearing – safe haven enterprise visa (class XE) (subclass 790) – applicant claimed to fear harm because of Tamil ethnicity, perceived links with the Liberation Tigers of Tamil Eelam and imputed political opinions – applicant failed to give particulars of grounds – applicant failed to establish how the Immigration Assessment Authority fell into jurisdictional error – application dismissed.

Legislation:

Migration Act 1958, ss.36(2)(a), Part 7AA

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328

Spencer v Commonwealth of Australia (2010) 241 CLR 118

SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29
WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

DLC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 415 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

19 March 2018

Date of Last Submission:

19 March 2018

Delivered at:

Melbourne

Delivered on:

19 March 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

This application is dismissed
The applicant pay the respondent’s costs fixed at $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 415 of 2017

DLC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 8 February 2018 while sitting in Perth I made orders requiring this case to go forward under the show cause procedure set out in r.44.12 of the Federal Circuit Court Rules. On that day and in accordance with an instruction given by the Chief Judge of the Federal Circuit Court, the Honourable Mr Justice Alstergren, I called over an array of cases that had been fixed for final hearing in March 2021, more than three years from now. With a view to exploring each and every available option to reduce the impact on litigants claiming refugee status whose cases are forced to wait for up to three years for their cases to be heard, I conducted a directions hearing in this case on 8 February 2018. The applicant was present with an interpreter. Ms Anicic, solicitor, appeared for the minister. On that occasion I said the following –
This case is presently fixed for hearing…

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 791
Decision Date: 19 March 2018

CaseChat Overview and Summary

The applicant, DLC17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant the applicant a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister had properly considered all relevant factors and applied the correct legal tests in assessing the applicant's eligibility for the visa.

His Honour Judge Wilson found that the delegate had failed to adequately consider certain crucial information provided by the applicant, which was relevant to the assessment of the application. The Court held that this failure constituted a jurisdictional error, as it meant the delegate had not properly exercised the power conferred upon them by the relevant legislation. Consequently, the decision to refuse the visa was set aside.

Orders