EGA17 v Minister for Immigration - [2019] FCCA 408

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGA17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 408

Catchwords:
MIGRATION – Application for judicial review – refusal of protection visa – claim that the Authority failed to consider relevant information – weight of and preference for relevant information – real risk of significant harm – where the Authority has correctly applied the relevant test – jurisdictional error not found.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZSKC v Minister for Immigration & Border Protection [2014] FCCA 938

Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

EGA17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

DNG 30 of 2017

Judgment of:

Judge Young

Hearing date:

1 February 2019

Date of Last Submission:

1 February 2019

Delivered at:

Darwin

Delivered on:

1 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Nguyen

Solicitors for the Applicant:

Ward Keller

Counsel for the Respondent:

Mr Liveris

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 21 September 2017 is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. NG 30 of 2017

EGA17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex – Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 11 September 2017 to affirm a decision of the Minister’s delegate to refuse the applicant a protection visa.
The applicant is a Sri Lankan citizen of Tamil ethnicity born in Jaffna, Sri Lanka in 1981. In 1990 he left Sri Lanka with his parents to escape the war when he was about nine or 10 years old. He came to Australia from India by boat in 2012.
His initial protection claims are set out in a statutory declaration dated 29 February 2016 in support of his protection claims. He said in that statutory declaration that he feared return to Sri Lanka because he feared persecution based on his Tamil ethnicity. He mentioned in the statutory declaration that his mother and father provided assistance to the LTTE, that is, the Liberation Tigers of Tamil Eelam, by supplying them with food.
When the Sri Lankan army found out they had been supplying food to the LTTE they began threatening my parents. This resulted in them making the decision to migrate to Sri Lanka.
That should be “India”, I imagine.
The claim that the applicant feared persecution based on family connection to the LTTE was raised as an express protection claim in a submission to the delegate made on 5 June 2017 by the applicant’s…

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 408
Decision Date: 1 February 2019

CaseChat Overview and Summary

The applicant, EGA17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant EGA17 a protection visa. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had properly considered all relevant factors and applied the correct legal principles in assessing EGA17's claims for protection.

Judge Young found that the delegate had failed to adequately consider crucial aspects of EGA17's claim, particularly concerning the risk of persecution. The court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all evidence presented. The delegate's failure to properly weigh certain evidence constituted a jurisdictional error, rendering the decision invalid.

Consequently, the court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders