DLH16 v Minister for Immigration - [2019] FCCA 201

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLH16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 201

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider a claim of the Applicant – new information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 197AB, 473CB, 473DC, 473DD, 473EA, 473FB

Cases cited:

BVC15 v Minister for Immigration and Border Protection (2017) 255 FCR 471
CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
DBA16 v Minister for Immigration [2017] FCCA 320
DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Applicant:

DLH16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2493 of 2016

Judgment of:

Judge Hartnett

Hearing date:

30 October 2018

Delivered at:

Melbourne

Delivered on:

1 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Solomon-Bridge

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

DLA Piper

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2493 of 2016

DLH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review in respect of a decision of the Immigration Assessment Authority (‘the Authority’) dated 19 October 2016, by which the Authority affirmed a decision of the delegate of the First Respondent (‘the delegate’) dated 29 July 2016 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘SHEV’). The Authority found the Applicant did not satisfy the criterion for the grant of a protection visa under ss.36(2)(a), 36(2)(aa), 36(2)(b) and 36(2)(c) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant relied upon an amended application and written submissions both filed 2 October 2018. The three grounds of application advanced by the Applicant in the amended application are as follows:-
“1. The Second Respondent failed to consider the Applicant's claims and, as a result, fell into jurisdictional error
Particulars
1.1 The Second Respondent, in its summary of the Applicant's claims referred and subsequently given to it by the First Respondent, set out the following claim:
ISIS was actively looking for new recruits and support in the Akkar region, Qabaait and Fnaydek areas and particularly targeted their recruitment at people with military training.
1.2 In submissions made to the First Respondent accompanying the Applicant's application for the visa, the Applicant explicitly claimed to fear recruitment by ISIS, being a family member of a high-ranking military officer and being seen as a potential recruit for ISIS by virtue of his military experience.
1.3 In the Applicant's statutory declaration, submitted to the…

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: [2019] FCCA 201
Decision Date: 1 February 2019

CaseChat Overview and Summary

The applicant, DLH16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application. The core of the dispute revolved around whether the IAA had adequately considered a claim made by the applicant, particularly in light of new information that had been presented. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the IAA had committed jurisdictional error by failing to consider the applicant's claim, including the impact of new information provided. This required the Court to determine the scope of the IAA's obligations when presented with such information and whether its decision-making process met the necessary legal standards.

Judge Hartnett found that the IAA had not committed jurisdictional error. The Court reasoned that the IAA had indeed considered the information provided by the applicant, including the new information, and had adequately addressed the applicant's claims within the framework of its review process. The Court applied principles of administrative law concerning the duty to consider relevant material and the standard for establishing jurisdictional error, concluding that the IAA's decision was not vitiated by any such error.

Consequently, the application for judicial review was dismissed.

Orders