FEDERAL CIRCUIT COURT OF AUSTRALIA
| DST18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1813 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in applying s.473DD of the Migration Act 1958 (Cth) considered – whether the Authority overlooked a particular social group claim or overlooked material evidence or made a finding without a factual basis considered – whether the Authority decision is affected by an interpretation error considered – jurisdictional error established in relation to the application of s.473DD. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 5L, 36, 414, 425, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD |
Keep reading for free
Create a free CaseChat account to read DST18 v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FCCA 1813
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Federal Court was whether the IAA had committed a jurisdictional error in its application of section 473DD of the *Migration Act*. This section governs the circumstances under which the IAA can consider "new information" when reviewing a decision to refuse a visa. The applicant contended that the IAA had wrongly excluded a part of his claim, which was based on an imputed political opinion as a failed asylum seeker who was also a witness to killings in incarceration.
Justice Driver, in her reasoning, referred to the case of *AYK17*, which involved a similar situation. In *AYK17*, the applicant had submitted that their fear of harm was linked to being rounded up with others and witnessing the deaths of inmates, which would make their imputed political opinion distinct from a general claim of failed asylum. The court in *AYK17* accepted that if a new claim or an elaboration of an existing claim relies on "new information" – meaning knowledge of a fact, subject, or event not previously before the original decision-maker – then the IAA cannot consider it unless specific conditions under section 473DD are met. The court found that the applicant's claim in *AYK17*, which relied on "new information" about witnessing killings, fell within this prohibition.
The court concluded that the IAA had made a jurisdictional error in its application of section 473DD. The IAA had treated the applicant's elaborated claim, which included the aspect of being a witness to killings, as relying on "new information" and therefore excluded it from consideration without properly satisfying the requirements of section 473DD. Consequently, the decision of the IAA was set aside.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In AYK17, the applicant had stated in a written submission to the Authority that:[49][49] AYK17 at [7], Federal Court’s emphasisOn behalf of the applicant’s [sic] it is submitted that the Applicant holds an objective fear of harm if returned to Sri Lanka because of his imputed political opinion as a failed asylum seeker.We submit because of the information that is available now on public domain. It is extracted below.As some inmates who were with me were killed in incarceration, I could be seen as a potential witness of such crimes. This is one of the bases upon which I claim protection. I also claim protection as I will be imputed with the LTTE profile as they did in the early 1990s. The Authority stated that the submission made “what appears to be a new claim that the applicant may be a potential witness to the deaths of people in incarceration”, and found that there were not exceptional circumstances to justify considering this claim.[50] The Federal Court summarised AYK17’s written submissions in relation to the Authority’s reasoning on this point as follows:[51]AYK17 says that, in context, the new material was drawing attention to the fact that the claim of a fear of persecution based upon an imputed political opinion as a failed asylum seeker was tied to and exacerbated by his past in having been rounded up with others and in having seen other inmates killed by authorities. Counsel submitted that this would make the appellant’s particular fear of harm different to a general claim of a person having left Sri Lanka and failed in a claim to asylum (which was the more limited context for the delegate’s decision).[50] AYK17 at 9[51] at [19], emphasis added AYK17 claimed at [40] that the Authority had erred in relying on s.473DD of the Migration Act to justify excluding “from consideration that part of his claim based upon his imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him”. Farrell J referred to CVK16 and stated at [48] that the claim in CVK16 was more accurately described as one that “involved ‘new information’ and therefore the statutory prohibition against receiving ‘new information’ also applied to CVK16’s new claim”. Relying on Plaintiff M174/2016 v Minister for Immigration[52] and Minister for Immigration v CLV16,[53] her Honour accepted at [49] that:if the new material had comprised a claim which relied only on information which was in the factual pool of information that had been before the delegate, the Authority would have been required to consider that new claim. However, as the authorities currently stand, where a new claim (such as the new material) or an elaboration of an old claim (such as that AYK17 would be imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him) relies on “new information” (that is, “knowledge about some particular fact, subject or event” which was not in the factual pool of information which had been before the delegate when the decision to refuse the visa was made), the new claim or the variation of the old claim cannot be considered by the Authority unless both paragraph (a) and one of sub-paragraphs (b)(i) or (ii) of s 473DD have been satisfied…[52] (2018) 264 CLR 217[53] (2018) 260 FCR 482