DRW17 v Minister for Immigration - [2018] FCCA 2237

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRW17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2237

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5AA, 36, 46A, 65, 473BB, 473CA

Cases cited:

ACA16 v Minister for Immigration & Anor [2017] FCCA 2074

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Applicant:

DRW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2591 of 2017

Judgment of:

Judge Driver

Hearing date:

15 August 2018

Delivered at:

Sydney

Delivered on:

15 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Morris

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2591 of 2017

DRW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 7 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s legal submissions filed on 7 August 2018.
The applicant is a citizen of Sri Lanka[1] who entered Australia at Christmas Island on 10 October 2012 as an “unauthorised maritime arrival”[2] (as defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act)).
[1] Court Book (CB) at 6.
[2] CB at 1 and 13.
On 9 December 2015, the Minister’s Department wrote to the applicant to advise him that the Minister had exercised his power under s.46A(2) of the Migration Act to permit him to apply for a protection visa, and invited him to do so.[3]
[3] CB at 16 to 21.
On 6 February 2017, the Minister’s Department received the applicant's application for a protection visa.[4]
[4] CB 24 to 66.
The applicant's claims are contained in his statement annexed to his application for a visa lodged with the Minister’s Department and at an interview before the delegate.[5] They are summarised in the delegate's decision and at [6] of the Authority's decision (DR).[6] The applicant claimed to fear harm from the Liberation Tigers of Tamil Eelam (LTTE), the Karuna group and the Sri Lankan authorities (in particular the police) by…

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 2237
Decision Date: 15 August 2018

CaseChat Overview and Summary

The applicant, DRW17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The Minister for Immigration was the respondent. The matter came before Driver J in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had an arguable case of jurisdictional error in relation to the IAA's decision. This involved considering whether the IAA had failed to exercise its jurisdiction or had wrongly exercised it. The applicant had also sought to dismiss a show cause application made by the Minister, which was interlocutory to the main review.

Driver J found that the applicant had not demonstrated an arguable case of jurisdictional error. The Court concluded that the IAA's decision was not vitiated by any error of law that would warrant intervention. Consequently, the application for judicial review was dismissed.

Orders