DUR16 v Minister for Immigration - [2018] FCCA 3030

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUR16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3030

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in failing to consider all claims made by the applicant – whether the Immigration Assessment Authority erred in the exercise of the discretion under s.473GB of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473GB, 473DD, 473EA

Cases cited:

Applicant:

DUR16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSSESSMENT AUTHORITY

File Number:

SYG 3510 of 2016

Judgment of:

Judge Emmett

Hearing date:

25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Sydney

Delivered on:

25 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Uche Okereke-Fisher

Solicitors for the Respondents:

Ms Katherine Hooper
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3510 of 2016

DUR16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a decision of the Immigration Assessment Authority (“the Authority”) dated 17 November 2016 which affirmed a decision of a delegate of the first respondent (“The Delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) conducted in accordance with Part 7AA of the Migration Act1958 (Cth) (“the Act”).
The factual background of the matter is accurately summarised by the first respondent in written submissions as follows:
“B FACTUAL BACKGROUND
2. The applicant is a male citizen of Sri Lanka. He arrived in Australia on 20 September 2012. On 1 April 2016, the applicant lodged an application for a SHEV: CB 1. The applicant claimed to fear harm by the Sri Lankan authorities because of his imputed profile in support of the Liberation Tigers of Tamil Eelam (LTTE), and to fear extortion by the Eelam People's Democratic Party (EPDP).
3. On 21 September 2016, a delegate of the first respondent refused the applicant's SHEV application: CB 158. The delegate's decision was referred for review 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.

Keep reading for free

Create a free CaseChat account to read DUR16 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3030
Decision Date: 25 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Safe Haven Enterprise Visa (SHEV) by a Sri Lankan citizen who arrived in Australia in September 2012. The applicant claimed to fear harm from Sri Lankan authorities due to an imputed profile supporting the Liberation Tigers of Tamil Eelam (LTTE), and extortion by the Eelam People's Democratic Party (EPDP). The delegate of the Minister for Immigration refused the SHEV application, a decision affirmed by the Administrative Appeals Authority (the Authority). The applicant sought judicial review of the Authority's decision in the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether the Authority erred in its assessment of the applicant's claims regarding his fear of harm. Specifically, the Court was required to consider whether the Authority properly evaluated the applicant's account of his reasons for leaving Sri Lanka, including an alleged bus accident and his financial capacity. Further, the Court had to determine if the Authority adequately considered the applicant's claims concerning threats to his family members and his imputed LTTE profile, as well as his alleged association with political parties and fear of extortion by paramilitary groups. The Court also needed to assess whether the Authority correctly applied the "real chance of significant harm" test in relation to the applicant's claims, including those concerning his illegal departure from Sri Lanka.

The Authority's reasoning, which the Court reviewed, involved a detailed examination of the evidence. The Authority placed significant weight on the applicant's failure to mention a crucial bus accident at his initial entry interview, finding this omission, along with contradictory evidence regarding his financial means, to be indicative of fabrication. The Authority also found implausible the applicant's claims of recent threats to his mother and sister, given the four-year gap in alleged interest from authorities. Furthermore, the Authority considered independent country information and found no evidence of ongoing harassment of individuals associated with the United National Party or the Tamil National Alliance, nor was it satisfied that the applicant faced a real chance of harm from paramilitary groups or due to his illegal departure. Consequently, the Authority concluded there was no real chance of significant harm to the applicant on return to Sri Lanka.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The factual background of the matter is accurately summarised by the first respondent in written submissions as follows:“B FACTUAL BACKGROUND2. The applicant is a male citizen of Sri Lanka. He arrived in Australia on 20 September 2012. On 1 April 2016, the applicant lodged an application for a SHEV: CB 1. The applicant claimed to fear harm by the Sri Lankan authorities because of his imputed profile in support of the Liberation Tigers of Tamil Eelam (LTTE), and to fear extortion by the Eelam People's Democratic Party (EPDP).3. On 21 September 2016, a delegate of the first respondent refused the applicant's SHEV application: CB 158. The delegate's decision was referred for review by the Authority. On 16 October 2016, the Authority received a 'submission' on behalf of the applicant: CB 192.4. On 17 November 2016, the Authority made its decision, affirming the decision of the first respondent's delegate not to grant the applicant a SHEV: CB 216.5. The Authority had regard to the material referred to it by the Secretary of the first respondent's Department under section 473CB of the Act, at [3]. The Authority identified the applicant's submission to it, at [4], and in so far as it constituted material in the nature of a submission addressing the delegate's findings, the Authority had regard to it. At [6], the Authority identified certain material provided to it by the applicant which was before the first respondent's delegate at the time of the delegate's decision and found this therefore did not constitute new information. The Authority found that the submission also sought to introduce 'new information', and identified and considered the requirements of section 473DD of the Act, from [5]-[10] of its reasons. 6. The Authority accepted certain aspects of the applicant's claims, which it identified at page 220 of the Court Book. The Authority accepted, at [22], that at the applicant's entry interview the applicant may not have provided a fully detailed account of his experiences. However, at the SHEV interview, the applicant was asked an open question as to the reasons he left Sri Lanka, and the Authority considered that the applicant was provided the opportunity to put forward his reasons for leaving Sri Lanka and his fear of harm, at [23]. The applicant was also asked a number of open questions at the entry interview about his experiences, and a direct question about why he left Sri Lanka. The Authority placed considerable weight on the applicant's omission to mention a claimed bus accident, said to be the event that prompted the applicant's decision to leave Sri Lanka in 2012, at [24]. The applicant's failure to mention this incident at the entry interview, coupled with what the Authority found was contradictory evidence regarding the applicant's inability to raise 10 lakhs, caused the Authority to reject the applicant's claim as to the bus accident, at [26]. 7. The Authority found that it had considerable doubt about the applicant's claims concerning the abduction of his sister and threats to his mother, in September/October 2016. The Authority found it implausible that there had been no interest in the applicant for four years and then, in 2016, the Criminal Investigation Division tasked persons to undertake the abduction and threat. The Authority found the applicant's claim to be implausible and that it was fabricated, at [27].8. The Authority considered that if the applicant was of interest to the authorities on the basis of the activities of his cousins, the authorities had ample opportunity to identify and arrest the applicant during his repeated encounters with the Army. The Authority also noted that the applicant had travelled to Malaysia and returned, in 2011, and did not come to adverse attention. The Authority was not satisfied that the applicant had been imputed with an LTTE profile, either because of his link to his father, or his cousins. The applicant had not otherwise been involved in any activities that would raise an LTTE profile. The Authority found there was not a real chance of harm to the applicant on return to Sri Lanka on this basis, at [37]. 9. The Authority found, by reference to independent country information, that there was no indication of ongoing harassment of persons involved with supporting the United National Party (UNP) or the Tamil National Alliance (TNA), and if the applicant were to return to Sri Lanka there was no real chance of any harm to him on the basis of his association with either party, at [40]. The Authority was not satisfied, at [42], that the applicant's fear of serious harm by paramilitary groups was well-founded, including by way of extortion, at [44]. 10. The Authority, at [49]-[58], considered the applicant's illegal departure claim and was not satisfied that there was a real chance the applicant would face any harm on the basis of his illegal departure from Sri Lanka, at [59]. 11. The Authority found there was no real chance that the applicant faced harm on the basis of being a Tamil, having an imputed LTTE profile or being the family member of LTTE members, being involved in driving for the UNP and the TNA, being extorted and threatened by paramilitary groups or from toxic chemicals injected into LTTE combatants. For the reasons it had given and on the evidence referred to, the Authority was similarly not satisfied that there was a real risk that the applicant would suffer significant harm, at [65]. The Authority gave separate consideration to the applicant's illegal departure claim in the context of the complementary protection criterion, and was not satisfied that he faced a real risk of significant harm, at [66]-[68].”

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

Full text does not contain this section.