DTH17 v Minister for Immigration - [2018] FCCA 729

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 729

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (IAA) – whether the IAA erred by misconstruing s.473DD of the Migration Act 1958 (Cth) – whether the IAA erred by failing to consider relevant material – whether the Tribunal failed to comply with Ministerial Direction No. 56 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 476, 499, pt.7AA

Ministerial Direction No. 56

Cases cited:

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958
CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176

Applicant:

DTH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 453 of 2017

Judgment of:

Judge Smith

Hearing date:

22 February 2018

Date of Last Submission:

22 February 2018

Delivered at:

Perth

Delivered on:

27 April 2018

REPRESENTATION

Solicitors for the Applicant:

Mr J Ramachandran, Magnus Law

Counsel for the Respondents:

Mr P J Hannan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 453 of 2017

DTH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 31 July 2017. The IAA affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia on the Cocos Islands on 18 October 2012 by boat and without a valid visa. On 23 March 2016, she lodged an application for a protection visa. That application was based upon the following factual claims.
The applicant is a Tamil woman from the northern province of Sri Lanka who lived in a hostel after the death of her parents in 2000 and 2002. During the school holidays, the applicant used to visit her cousin with her sister at the family home. In 2008, when the applicant was visiting her cousin, the Army[1] undertook a check on the applicant, her sister and cousin. The Army also searched the house and asked the applicant the whereabouts of her brother who they believed to be in the LTTE[2]. The Army officers questioned and accused the applicant, her sister and her cousin of being in the LTTE and took the applicant and her sister onto the road. They took a photograph of the applicant and her sister outside the house and then released them. The Army officers said that since they now had a photograph, they could arrest them at any time.
[1] Sri Lankan Army.
[2] Liberation Tigers Tamil Eelam.
The Army came to the cousin’s house every second day and made threats to kill the family if…

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 729
Decision Date: 27 April 2018

CaseChat Overview and Summary

The applicant, DTH17, sought judicial review of a decision by the Minister for Immigration to refuse her visa application. The dispute concerned whether the applicant had presented new claims for protection that were not considered by the original decision-maker. 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 applicant had raised "new claims" in her submissions that required consideration by the delegate, or if these submissions merely repeated or elaborated on matters already before the delegate. This determination was crucial to assessing whether the delegate had failed to consider relevant information when making the visa refusal.

Judge Smith's reasoning focused on identifying which parts of the applicant's submissions constituted genuinely new claims for protection, as opposed to reiterations of previously made arguments. The court considered the applicant's detailed accounts of alleged mistreatment, including sexual assault and harassment by male police officers, and broader concerns about the safety of Tamil women and girls in Sri Lanka. The court also examined the applicant's claims regarding her brother's alleged LTTE connections and the potential repercussions for her upon return to Sri Lanka, particularly in light of her sister's successful visa application on similar grounds. The court noted the applicant's assertion that she was six months pregnant and the potential danger to herself and her unborn child.

The court found that the applicant had indeed raised new claims that were not before the delegate. Consequently, the delegate had failed to consider these new claims when making the decision to refuse the visa. The court therefore set aside the delegate's decision and remitted the matter to the delegate for redetermination according to law, with the applicant's new claims to be considered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Part of the submissions repeated what had been before the delegate however, the following submissions were clearly new matters: …When they search us, there was no female police always male police search us they always touch inappropriately because that I always get mentally and psychically affected a lot but the immigration understanding in a different way and says that’s normal ……Even under the new government there still having a lot of problems against women and girls like raping and abusing and murdering very bad compare to Australia. Australia is a heaven compare to sri lanka. In the recent months and years there were over 100 Tamil girls got raped and got killed.14/may/2015 a Tamil girl and school student got raped and got killed and 28 June 2015 there was another student in Vavuniya got raped and got killed 23of June 2015 another student. 20 of June 2015 there are still a lot of children’s and Tamil girls and women are living their life in fear but the government trying to cover up whatever happens against Tamil women and innocent girls.…In the case of myself returning to sri lanka I will be tortured and rape and will get killed or life time in jail. …I have a brother who live in London for many years his name [name] his date of birth [date of birth] and he is a former LTTE member and he collect money for LTTE and after the war went over now he is functioning under Overseas Tamil Ellam Government. sri Lankan government black list 424 Tamil live overseas in the list my brother is one of them all his financial and asset been taken over by the sri Lankan government. because him I am very worried I have no choice. Because I did not tell this correct information about my brother I was in a lot mental stress and worried in case of going back to sri lanka I will get in trouble and lose my life. (Emphasis added)And me and my sister we are came together … when we came here we have the same case,same problems,same situation.but immigration accepted if she going back to srilanka she will get trouble and problems.same case same situation for me immigration refused my visa application. I don’t know how can they take this decision? ..Immigration accepted my sister’s visa application and she got 3 year tpv visa.in same case my application was refused by immigration. …And i cannot going back srilanka as a refused asylum seekers without my sister.if i going without my sister i may face more trouple and mentally psycally torture by cid and srilankan forces.if i going without my sister cid or police or army will ask “where is your sister?how can she got visa?how australian government accepted her claim.” may they can take decision my sister is a ltte member or related with any crime. ……I am six months Pregnant and I am worried for my baby in the case you sending me to sri lanka myself and my child have no hope of life Please let me stay here in Australia for my baby’s future and my life I can’t imagine my life and child life going back to sri lanka please give me a life chance to have peaceful life in Australia I will always be very loyal to Australia I promise. …(Emphasis and errors in original)