DRG17 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

DRG17 v Minister for Home Affairs [2018] FCA 1228

Appeal from:

DRG17 v Minister for Home Affairs & Anor [2018] FCCA 221

File number:

WAD 53 of 2018

Judge:

BANKS-SMITH J

Date of judgment:

17 August 2018

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court of Australia to dismiss application for judicial review – whether Immigration Assessment Authority had fallen into jurisdictional error – where primary judge dismissed application – where no error on part of primary judge particularised or established – appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2)(aa), 46A(2)

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

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

SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129

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:

32

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms SJ Oliver

Solicitor for the First Respondent

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

WAD 53 of 2018

BETWEEN:

DRG17

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	17 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant 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:

1. This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a safe haven enterprise visa (SHEV): DRG17 v Minister for Immigration and Border Protection [2018] FCCA 221.

   Background

2. The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in November 2012.

3. In December 2015 the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the appellant to lodge a SHEV.

4. The appellant lodged an application for a SHEV together with a statutory declaration setting out his claims for protection (summarised below) and he also attended an interview.

5. On 18 November 2016 a delegate of the Minister refused the appellant's application for a SHEV.

6. Pursuant to s 473CA of the Act, the delegate's decision was referred to the Authority for fast track review.  On 24 November 2016 the Authority wrote to the appellant informing him of the review and informing him that new information could only be considered in limited circumstances.

7. On 14 December 2016 the Authority received a one page statement…