DVE16 v Minister for Immigration - [2017] FCCA 2084

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVE16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2084

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that the IAA had failed to consider exercising a discretion.

MIGRATION – Effect of s.473DA of the Migration Act 1958 on the operation of common law rules of natural justice in IAA reviews.

Legislation:

Migration Act 1958, ss.5, 5AA, 36, 46A, 422B, 425, 473BB, 473CA, 473DA, 473DB, 473DC, 473DE, 473DF, 474

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Applicant:

DVE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3525 of 2016

Judgment of:

Judge Cameron

Hearing dates:

14 March 2017, 9 June 2017, 31 July 2017

Date of Last Submission:

31 July 2017

Delivered at:

Sydney

Delivered on:

1 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the First Respondent:

Mr B. Kaplan

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3525 of 2016

DVE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos (Keeling) Islands on 8 November 2012. On 20 June 2016 he lodged an application for a Safe Haven Enterprise (subclass 790) visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion. On 24 August 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial…

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: [2017] FCCA 2084
Decision Date: 1 September 2017

CaseChat Overview and Summary

The applicant, DVE16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The core of the dispute concerned allegations that the IAA's decision was affected by jurisdictional error, specifically by failing to consider the exercise of a discretion it possessed.

The court was required to determine whether the IAA had indeed failed to consider exercising a relevant discretion, and if so, whether this constituted jurisdictional error. A further issue was the effect of section 473DA of the *Migration Act 1958* (Cth) on the operation of common law rules of natural justice in the context of IAA reviews.

Judge Cameron found that the IAA had failed to consider a relevant discretion, which amounted to jurisdictional error. The court reasoned that the IAA's statutory duty to consider all relevant matters, including discretionary considerations, had not been fulfilled. This failure meant the decision was vitiated by jurisdictional error.

The court ordered that the IAA's decision be set aside and remitted to the IAA for redetermination according to law.

Orders