DNQ17 v Minister for Immigration - [2017] FCCA 3032

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNQ17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3032

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority’s (“IAA”) decision – visa – Safe Haven Enterprise Visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA relied on irrelevant and outdated information, gave inappropriate weight to certain information, did not consider all the information before it, gave inadequate reasons for its decision and reasoning, denied the applicant common law procedural fairness.

Legislation:

Migration Act 1958, ss.36, 430, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
DYK16 v Minister for Immigration and Border Protection [2017] FCCA 2749
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Applicant:

DNQ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2496 of 2017

Judgment of:

Judge Cameron

Hearing date:

29 November 2017

Date of Last Submission:

29 November 2017

Delivered at:

Sydney

Delivered on:

7 December 2017

REPRESENTATION

Solicitors for the Applicant:

Mr C. Zheng of Solutions Legal Sydney

Solicitors for the Respondents:

Mr E. Cheesman of Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2496 of 2017

DNQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Sri Lanka who arrived in the Cocos Islands as an illegal maritime arrival on 4 November 2012. On 30 December 2016 he lodged an application for a Safe Haven Enterprise Visa (Subclass 790) with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and imputed affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”). On 29 May 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). His matter was then referred to the Immigration Assessment Authority (“IAA”) for a review of that departmental decision. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The applicant is a Tamil born in the Northern Province of Sri Lanka. In his written submissions, the Minister summarised the applicant’s claims in the following terms, which I adopt:
6(a) when he was young his father was shot and killed by Sri Lankan armed forces on suspicion…

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: [2017] FCCA 3032
Decision Date: 7 December 2017

CaseChat Overview and Summary

DNQ17 (the applicant) sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a Safe Haven Enterprise Visa. The applicant alleged that the IAA's decision was affected by jurisdictional error.

The primary legal issues before the Court were whether the IAA had relied on irrelevant and outdated information, given inappropriate weight to certain information, failed to consider all the information before it, provided inadequate reasons for its decision and reasoning, and denied the applicant common law procedural fairness.

Judge Cameron found that the IAA had failed to consider all the information before it, specifically a significant amount of documentary evidence provided by the applicant. The Court also determined that the IAA's reasons for its decision were inadequate, failing to engage with the applicant's evidence and explain how it reached its conclusions. Consequently, the IAA's decision was vitiated by jurisdictional error.

The Court set aside the IAA's decision and remitted the matter to the IAA for redetermination according to law.

Orders