DYN16 v Minister for Immigration

[2018] FCCA 2440

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2440

Catchwords:
MIGRATION – Safe Haven Enterprise (XE-790) visa application – review of decision of Immigration Assessment Authority (“IAA”) affirming decision of delegate of the first respondent not to grant a Safe Haven Enterprise Visa – whether IAA made a jurisdictional error in failing to raise critical matters with applicant – whether IAA denied applicant procedural fairness or made an error of law because an oral interview was not granted – applicant has departed Australia – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: DYN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2762 of 2016

Judgment of: Judge Kirton

Hearing date: 27 August 2018

Date of Last Submission: 27 August 2018

Delivered at: Melbourne

Delivered on: 27 August 2018

REPRESENTATION

No appearance for the Applicant

Solicitors for the Respondents: Mr Allan of Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant to pay the first respondent’s costs in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2762 of 2016

DYN16

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

and

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The applicant is a citizen of Sri Lanka who claimed to be a Tamil from Puttalam, North Western Province in Sri Lanka. 

2. He arrived in Australia on 29 April 2013 and lodged an application for a Safe Haven Enterprise visa on 29 April 2013. 

3. He then lodged an application for a Safe Haven Enterprise (XE-790) visa on 18 March 2016.  On 20 September 2016, a delegate of the Minister for Immigration and Border Protection refused the visa.

4. On 23 November 2016, the Immigration Assessment Authority (“IAA”) affirmed the delegate’s decision not to grant the protection visa (“IAA decision”).

5. On 19 December 2016, the applicant filed an application for judicial review of the IAA decision.  The applicant also filed an affidavit annexing a copy of the IAA decision. 

6. There are two grounds of review in the application.  The grounds are unparticularised.  The grounds are: (1) that the IAA had constructively failed to review the first respondent’s decision, had denied the applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or to extend to him a real opportunity to reply to adverse information, and (2) that the IAA had denied the applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the IAA’s decision that he was not a refugee and an oral interview can give insight into a person’s credibility that is otherwise unavailable.  By refusing to schedule an oral interview with the applicant, the IAA fell into error/denied the application procedural fairness. 

7. The response of the first respondent was filed on 10 January 2017.  The first respondent sought orders that: (1) the application be dismissed and (2) the applicant pay the first respondent’s costs of the proceeding. 

8. The grounds of defence were that the application for judicial review does not establish any jurisdictional error in the decision of the IAA.

9. On 21 June 2017, orders were made that the first respondent file and serve a court book on or before 5 July 2017.

10. The first respondent has requested a directions hearing in this matter.  This has been listed today.  An affidavit of Ashely Allan, solicitor employed in the firm Sparke Helmore lawyers for the first respondent was filed on 31 July 2018.  That affidavit indicates that the applicant has left the Commonwealth of Australia. 

11. Ms Allan deposes in paragraph 3 that on 13 July 2018, an officer of the first respondent sent an email to Sparke Helmore advising that the applicant was offshore.  Also sent with that email was a copy of screenshots from the computer database ‘Integrated Client Services Environment’ at the Department of Home Affairs, (formerly known as the Department of Immigration and Border Protection). 

12. Annexure A to the Allan affidavit is a screenshot of the first respondent’s “client detail” profile for the applicant.  This records that his present status is “offshore”. 

13. Annexure B to the Allan affidavit are screenshots that indicate that the applicant’s WE-050 visa was granted on 1 March 2017 but ceased on 11 July 2018. 

14. Annexure C to the Allan affidavit are screenshots that indicate that the applicant departed Australia on 11 July 2018 at 22.43 and is now offshore.

15. As the applicant has departed Australia, the first respondent seeks orders (1) dismissing the application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules and, (2) costs.

16. In the circumstances, I am satisfied that the applicant has departed the Commonwealth of Australia on 11 July 2018 and has therefore abandoned his application for judicial review in this proceeding.

17. I am also satisfied that the grounds of review, without further particularisation, do not establish any jurisdictional error in the decision of the IAA. 

18. I am also satisfied that the first respondent has incurred unnecessary cost and expense in defending this proceeding and that a costs order in favour of the first respondent is appropriate. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 31 August 2018