Dud18 v Minister for Immigration - [2020] FCCA 2506

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUD18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2506

Catchwords:
MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA erred in determining that particular information was “new information” – whether error was material – whether the IAA overlooked critical evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.5, 5AAA, 5J, 46A, 55, 65, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510
BHH18 v Minister for Home Affairs & Anor [2020] FCCA 337
BHL19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 94

CVV16 v Minister for Home Affairs [2019] FCA 1890

DPH17 v Minister for Immigration & Anor [2019] FCCA 2258
DTK17 v Minister for Immigration & Border Protection [2018] FCAFC 170
Gajjar v Minister for Immigration & Citizenship [2013] HCA 13
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
Singh v Minister for Home Affairs [2019] FCAFC 3

Applicant:

DUD18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 396 of 2018

Judgment of:

Judge Kendall

Hearing date:

10 February 2020

Date of Last Submission:

1 July 2020

Delivered at:

Perth

Delivered on:

10 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr M Guo

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms S J Oliver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 396 of 2018

DUD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in this matter is a Tamil Sri Lankan. He arrived in Australia as an unauthorised maritime arrival on 27 November 2012 (Court Book (“CB”) 60).
On 11 January 2016, the then Minister for Home Affairs (the “Minister”) lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Safe Haven Enterprise Visa (the “visa”) (CB 21-26).
On 13 March 2017, the applicant applied for the visa (CB 35-94). The applicant claimed to fear harm on the basis of his being a Tamil, because of an actual and imputed political opinion as an alleged member of the Liberation Tigers of Tamil Eelam (the “LTTE”) and supporter of the Tamil people’s fight for self-determination, as a member of a particular social group of Tamil males believed to be affiliated with the LTTE and as a failed Tamil asylum seeker. The applicant provided a statement of claims which provided specific details relating to past events which he said supported his protection claims (CB 102-112).
On 23 August 2017, the applicant…

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: [2020] FCCA 2506
Decision Date: 10 September 2020

CaseChat Overview and Summary

The applicant, Dud18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The core of the dispute revolved around whether the IAA had properly considered certain information presented by the applicant and whether any errors in that consideration were material to the outcome. The matter was heard by Judge Kendall in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the IAA had erred in its determination that specific information provided by the applicant constituted "new information" for the purposes of its assessment, and if so, whether such an error was material to the decision to refuse the protection visa. The applicant also contended that the IAA had overlooked critical evidence relevant to their claim. The court was tasked with determining if any of these alleged errors amounted to a jurisdictional error.

Judge Kendall found that the IAA had not committed jurisdictional error. The reasoning focused on the IAA's assessment of the information provided by the applicant and its conclusion that it did not meet the threshold for "new information" that would warrant a reconsideration of the original decision. The court applied principles relating to the scope of the IAA's review powers and the criteria for identifying material errors. Ultimately, the court concluded that the IAA's decision was not vitiated by jurisdictional error.

The application for judicial review was dismissed.

Orders