FPU17 v Minister for Immigration - [2018] FCCA 1804

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPU17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1804

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – whether the adverse findings by the Authority were illogical or unreasonable – whether the Authority failed to correctly apply the relevant law – whether the Authority failed to consider relevant issues – no jurisdictional error made – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 5H, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 476.

First Applicant:

FPU17

Second Applicant:

FPV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3961 of 2017

Judgment of:

Judge Street

Hearing date:

3 July 2018

Date of Last Submission:

3 July 2018

Delivered at:

Sydney

Delivered on:

15 November 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Sinnarajah
Divine Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

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

DATE OF ORDER: 15 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3961 of 2017

FPU17

First Applicant

FPV17

Second 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 6 December 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.
The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The first applicant is the father of the second applicant dependent son, and the second applicant has been included as a member of the family unit. The applicants were found to be Tamil Hindus born in Batticaloa in the Eastern Province of Sri Lanka. The applicants arrived in Australia on 1 May 2013 as unauthorised maritime arrivals.
The first applicant claims to fear harm on the basis of his political opinion as a result of violence from political opponents, his Tamil ethnicity, as a member of a particular social Group, and for being failed asylum seekers returning to Sri Lanka.
The first applicant claimed he was detained by the Liberation Tigers of Tamil Eelam (“LTTE”) after refusing to pay them money but was released after he subsequently paid. In the 1990s the first applicant alleged he was beaten up by the Sri Lankan Army (“SLA”) when someone had thrown an explosive at an army vehicle near his shop. The first applicant said the army came and rounded up everyone and the first applicant was one of those who were…

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 1804
Decision Date: 15 November 2018

CaseChat Overview and Summary

The applicant, FPU17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant FPU17 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 determining whether the delegate of the Minister, in assessing FPU17's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Street found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The delegate's assessment was found to be based on an incomplete and flawed understanding of the evidence presented by FPU17. The Court reiterated the principle that a decision-maker must genuinely consider all relevant evidence and not make findings that are not supported by the evidence. The failure to do so constituted a jurisdictional error.

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