EDQ17 v Minister for Immigration - [2019] FCCA 3654

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDQ17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3654

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority decision – real risk of serious harm – failed asylum seeker – departed homeland unlawfully – jurisdictional error – legally unreasonable – consideration of new information – three limb test – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD

Cases cited:

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
VEAL v Minister for Immigration and Multicultural Affairs[2005] HCA 72; (2005) 225 CLR 88
BDY18 & Ors v Minister for Immigration and Border Protection & Anor (WAD107/2019)
Minister for Immigration and Citizenship v Li [2013] HCA 18
ALJ18 v Minister for Immigration & Anor [2018] FCCA 3835
DLB17 v Minister for Home Affairs [2018] FCAFC 230
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant:

EDQ17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1999 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

30 July 2019

Date of Last Submission:

2 August 2019

Delivered at:

Melbourne

Delivered on:

13 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Mr Maloney

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1999 of 2017

EDQ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Tamil from Sri Lanka who arrived in Australia by boat on 12 October 2012.
On 20 February 2016 the applicant applied for a temporary protection visa on the basis of fearing harm from Sri Lankan authorities as a result of being a Tamil who had worked as a driver for the Liberation Tigers of Tamil Eelam (‘LTTE’) during the civil war.
A delegate of the Minister refused to grant the applicant a visa on

15 February 2017, finding that the applicant did not have a profile that indicated he would face a real risk of serious harm in Sri Lanka. That decision was affirmed by the Immigration Assessment Authority (‘IAA’) on 31 August 2017. The applicant seeks judicial review of the IAA’s decision.

The Applicant’s Claims

The thrust of the applicant’s case was based upon the claim that he worked as a driver for the LTTE between 2005 and 2009 and was paid monthly (what was described in the Court Book as a ‘salary position’) for transporting goods, personnel and weapons.
The applicant explained that he was displaced a number of times during the war and that his in-laws were killed during an attack in 2009 as a result of shelling. The applicant also said that during the war he sustained a shrapnel wound. He said that he was questioned by authorities…

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: [2019] FCCA 3654
Decision Date: 13 December 2019

CaseChat Overview and Summary

The applicant, EDQ17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned the IAA's assessment of whether the applicant faced a real risk of serious harm if returned to their homeland, following a failed asylum claim. The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the IAA had committed a jurisdictional error by acting in a manner that was legally unreasonable. Specifically, the court was required to consider whether the IAA had failed to properly consider new information provided by the applicant and whether its assessment of the risk of harm was based on an erroneous application of the relevant legal tests.

Judge Riethmuller applied the three-limb test for legal unreasonableness, which requires consideration of whether the decision-maker failed to take into account a relevant consideration, took into account an irrelevant consideration, or made a decision so unreasonable that no reasonable decision-maker could have arrived at it. The court found that the IAA had adequately considered the new information and that its assessment of the risk of serious harm was not legally unreasonable. Consequently, the application for judicial review was dismissed.

Orders