DQS19 v Minister for Immigration - [2020] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQS19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1638

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – Authority refusing to consider new information under s.473DD of the Migration Act 1958 (Cth) – whether the Authority erred in this regard considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 46A, 430, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA

Cases cited:

ABJ17 v Minister forImmigration [2018] FCA 950

ADN17 v Minister for Immigration & Anor [2018] FCCA 3606

ADN17 v Minister for Home Affairs [2019] FCA 1037

AKK17 vMinister for Immigration & Anor [2017] FCCA 2486

AUH17 v Minister for Immigration [2018] FCA 388

AXB17 v Minister for Immigration & Anor [2018] FCCA 514

BDY18 v Minister for Immigration [2020] FCAFC 24

BOS17 v Minister for Immigration [2020] FCA 75

BRA16 v Minister for Immigration [2018] FCA 127

BVD17 v Minister for Immigration [2019] HCA 34

BVZ16 v Minister for Immigration [2017] FCA 958

Carrascalao v Minister for Immigration (2017) 252 FCR 352

CHF16 v Minister for Immigration [2017] FCAFC 192

CQJ17 v Minister for Immigration & Anor [2020] FCCA 1438

CSR16 v Minister for Immigration [2018] FCA 474

DGZ16 v Minister for Immigration [2018] FCAFC 12

DYS16 v Minister for Immigration [2018] FCAFC 33

Minister for Immigration v BBS16 [2017] FCAFC 176

Minister for Immigration v CED16 [2020] HCA 24

Minister forImmigration v CLV16 [2018] FCAFC 80

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Win vMinister for Immigration [2000] FCA 1457

Win v Minister for Immigration (2001) 105 FCR 212

Applicant:

DQS19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 375 of 2019

Judgment of:

Judge Driver

Hearing date:

18 June 2020

Delivered at:

Sydney, by telephone to Perth

Delivered on:

21 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr F A Robertson

Solicitors for the Applicant:

AUM Legal

Counsel for the Respondents:

Ms S J Oliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as amended on 21 May 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 375 of 2019

DQS19

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 decision of the Immigration Assessment Authority (Authority) made on 22 August 2019. 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 is derived from the submissions of the parties.
The applicant, a citizen of…

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 1638
Decision Date: 21 July 2020

CaseChat Overview and Summary

The applicant, DQS19, 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 if returned to Sri Lanka. The central issue before the Federal Circuit and Family Court of Australia was whether the IAA had erred in refusing to consider new information provided by the applicant under section 473DD of the *Migration Act 1958* (Cth).

The court was required to determine whether the IAA's decision not to consider the new information constituted a jurisdictional error. This involved an examination of the scope and application of section 473DD, which permits the IAA to consider new information in certain circumstances.

Judge Driver found that the IAA had not committed a jurisdictional error. The court reasoned that the applicant had not satisfied the preconditions for the IAA to be obliged to consider the new information under section 473DD. The Authority was entitled to conclude that the information provided did not meet the criteria set out in the legislation for mandatory consideration. Consequently, the application for judicial review was dismissed.

Orders