ENP19 v Minister for Immigration - [2020] FCCA 1216

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENP19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1216

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (protection visa) – whether the Authority exercised its discretion under s 473DD of the Migration Act 1958 (Cth) – whether the Authority excluded information from its consideration of the applicant’s case – whether the Authority found that exceptional circumstances did not exist to allow consideration of information – whether the Authority did not complete its Statutory task in assessing the harm to the applicant – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473, Part 7AA

Cases cited:

DUX16 v Minister for Immigration and Border Protection [2018] FCA 1529

FET18 v Minister for Home Affairs (no 2) [2019 FCA 1524

Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR

559

Minister for Immigration and Multicultural Affairs v Jama

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR

220

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018)

264 CLR 217

SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292

Vo v Minister for Home Affairs [2019] FCAFC 108

Applicant:

ENP19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2990 of 2019

Judgment of:

Judge Humphreys

Hearing date:

18 May 2020

Date of Last Submission:

18 May 2020

Delivered at:

Parramatta

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Godwin

Solicitors for the Applicant:

Stephen Hodges Solicitors

Counsel for the Respondents:

Ms K Hooper

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

Grant leave for the applicant to rely upon the Amended Application filed 25 May 2020.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2990 of 2019

ENP19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Sri Lanka. The applicant arrived in Australia on 8 November 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Visa (protection visa) on 16 March 2017. The applicant claimed to fear harm because of his imputed association with the Liberation Tigers of Tamil Eelam (“the LTTE”), including owing to his relationship with his brother.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa on 17 September 2019.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 24 October 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’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: [2020] FCCA 1216
Decision Date: 5 June 2020

CaseChat Overview and Summary

The applicant, ENP19, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise Visa. The core of the dispute revolved around whether the IAA had properly exercised its statutory powers and considered all relevant information when assessing ENP19's claim for protection. The matter was heard by Judge Humphreys in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the IAA had committed a jurisdictional error by failing to exercise its discretion under section 473DD of the *Migration Act 1958* (Cth). This included determining whether the IAA had unlawfully excluded information from its consideration, specifically whether it had found that exceptional circumstances did not exist to permit the consideration of certain information. Furthermore, the Court was asked to consider whether the IAA had failed to complete its statutory task by not adequately assessing the harm to the applicant.

Judge Humphreys found that no jurisdictional error had been made out. The Court reasoned that the IAA had properly considered the information before it and had not failed to exercise its discretion under section 473DD. The decision indicated that the IAA had undertaken its statutory task of assessing the harm to the applicant in accordance with the law. Consequently, the application for judicial review was dismissed.

Orders