DRO17 v Minister for Immigration - [2018] FCCA 3547

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRO17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3547

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to properly apply the real chance test – jurisdictional error established – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5H, 36

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant:

DRO17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2580 of 2017

Judgment of:

Judge Smith

Hearing date:

15 November 2018

Date of Last Submission:

15 November 2018

Delivered at:

Sydney

Delivered on:

15 November 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges, Stephen Hodges Solicitor

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ of certiorari issue quashing the decision of the second respondent dated 19 July 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 24 November 2016 according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2580 of 2017

DRO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

This is an application for judicial review of the decision of the Immigration Assessment Authority made on 19 July 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 13 October 2012. On 14 May 2016 he lodged a protection visa application. The claims made by him are summarised at [11] of the Authority’s reasons:
...
• He is a male Hindu Tamil from the Batticaloa District in the Eastern Province of Sri Lanka.
• In 1994, his father was rounded up by the Sri Lankan army with other men in the village and taken to the army camp where he was questioned and seriously beaten. His father was returned to the village the next day and died shortly afterwards from his injuries.
• In 2000, the applicant was selected to join a home run for destitute boys, Arun Shanthi Nivas, operating in Colombo. He moved to Colombo and lived at the home from May 2000 until December 2008. He attended schooling in Colombo during this period.
• The man who ran the home was a Tamil man connected with the LTTE[1].
• In 2004, the applicant came into contact with his cousin’s husband (KY) who was a high-ranking member of the LTTE. From 2004 until 2006, the applicant received explosives and weapons which he held…

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 3547
Decision Date: 15 November 2018

CaseChat Overview and Summary

The applicant, DRO17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their protection visa application. The dispute centred on whether the IAA had correctly applied the "real chance" test when assessing the applicant's claims. The matter came before Judge Smith 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 properly apply the "real chance" test in its assessment of DRO17's protection visa application. This involved determining whether the IAA had adequately considered the evidence and applied the correct legal standard in assessing the likelihood of the applicant suffering harm if returned to their country of origin.

Judge Smith found that the IAA had indeed erred in its application of the "real chance" test. The Court reasoned that the IAA's assessment did not sufficiently engage with the applicant's evidence and failed to give due weight to the possibility of harm, thereby falling short of the required legal standard. This failure constituted jurisdictional error. Consequently, the Court issued the necessary writs to quash the IAA's decision and remit the matter for redetermination.

Orders