ECJ17 v Minister for Immigration - [2018] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECJ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3228

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s claims – whether the Authority failed to exercise its powers under s 473DC of the Act – whether the Authority failed to give consideration to the applicant’s evidence – whether the Authority failed to take into consideration the applicant’s religion and ethnicity – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473DD, 476

Applicant:

ECJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 497 of 2017

Judgment of:

Judge Street

Hearing date:

30 July 2018

Date of Last Submission:

30 July 2018

Delivered at:

Perth

Delivered on:

30 July 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 497 of 2017

ECJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on made on 18 August 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity from a particular village in the Batticaloa district in the Eastern Province of Sri Lanka. The applicant claimed to fear harm in Sri Lanka on the basis that he is on a special list of Tamil Muslims suspected of having connections with the Liberation Tigers of Tami Eelam (“LTTE”).
On 13 December 2016, the applicant lodged an application for a Safe Haven Enterprise visa. On 16 March 2017, the applicant attended at an interview with the Department and, because of a difficulty with an interpreter, it was then rescheduled to 30 March 2017. The applicant then attended a second interview with a different Tamil interpreter. On 7 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

On 13 April 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and…

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 3228
Decision Date: 30 July 2018

CaseChat Overview and Summary

The applicant, ECJ17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter came before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. The Court was required to determine if the delegate's assessment of the applicant's credibility and the objective country information led to a reasonable conclusion that the applicant did not hold a well-founded fear of persecution.

Judge Street's reasoning focused on the principles of administrative law, specifically the duty of an administrative decision-maker to undertake a comprehensive and fair assessment of all relevant evidence. The Court examined the delegate's written reasons to ascertain if they adequately addressed the specific claims made by ECJ17 and whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution under the Migration Act 1958 (Cth) and relevant international conventions. The Court found that the delegate's assessment had failed to adequately engage with certain aspects of the applicant's evidence and the available country information, leading to an error in the decision-making process.

Consequently, the Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders