EIC18 v Minister for Home Affairs - [2019] FCCA 1244

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIC18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1244

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – applicants’ claims generally accepted but applicants’ fears found not to be well-founded and some harm not being serious or significant – whether the Authority erred in considering what amounted to serious or significant harm considered – whether the Authority overlooked an element or integer of the claims considered – whether the Authority misapplied the real chance test considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 91R

Cases cited:

BFM16 v Minister for Immigration & Anor (2016) 310 FLR 257
BPC16 v Minister for Immigration [2018] FCA 920
Chan v Minister for Immigration (1989) 169 CLR 379
DLC17 v Minister for Home Affairs [2018] FCA 1226
DYG18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1142

First Applicant:

EIC18

Second Applicant:

EID18

Third Applicant:

EIE18

Fourth Applicant:

EIF18

Fifth Applicant:

EIG18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2335 of 2018

Judgment of:

Judge Driver

Hearing date:

13 May 2019

Delivered at:

Sydney

Delivered on:

17 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr V Kline, pro bono publico

Solicitors for the Respondents:

Mr J McGovern of Clayton Utz

ORDERS

The application as amended on 15 February 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2335 of 2018

EIC18

First Applicant

EID18

Second Applicant

EIE18

Third Applicant

EIF18

Fourth Applicant

EIG18

Fifth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protections visas.
The following statement of background facts concerning the applicants’ claims for protection and the decision of the Authority on them is derived from the submissions of the parties.
There are five applicants who are the applicant father (first applicant), his wife (third applicant) and their three minor children. The second, fourth and fifth applicants are the daughters and son of the first and third applicants.…

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 1244
Decision Date: 17 June 2019

CaseChat Overview and Summary

The applicants, EIC18 and others, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their applications for protection visas. The applicants, who were from Sri Lanka, claimed they feared harm if returned to their country of origin. While the IAA generally accepted the applicants' claims about the harm they might face, it ultimately found that these fears were not well-founded and that some of the alleged harm did not amount to serious or significant harm. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had erred in its assessment of what constituted serious or significant harm, whether it had overlooked any element or integer of the applicants' claims, and whether it had misapplied the "real chance" test in determining the likelihood of harm. The applicants contended that these errors amounted to jurisdictional error.

Judge Driver found that the IAA had not committed jurisdictional error. The Court reasoned that the IAA had correctly applied the relevant legal principles in assessing the applicants' claims. Specifically, the IAA had properly considered the nature and severity of the harm alleged, and had applied the "real chance" test in accordance with established jurisprudence. The Authority's findings that the feared harm was not serious or significant, and that the applicants' fears were not well-founded, were open to it on the evidence before it.

Consequently, the applications for judicial review were dismissed.

Orders