GOT18 v Minister for Immigration - [2020] FCCA 1697

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOT18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1697

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority failed to consider a claim or misapplied s.5J of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 46A, 65, 473CB, 473DC, 473DD, 473FA,

499.

Cases cited:

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473

Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1

BDI17 v Minister for Immigration & Anor [2018] FCCA 2162

BWC16 v Minister for Home Affairs [2018] FCA 1375

CCW16 v Minister for Immigration & Anor [2017] FCCA 2

Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379

DKA18 v Minister for Immigration & Anor [2020] FCCA 8

Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088

DTH17 v Minister for Immigration [2018] FCCA 729

Htun v Minister for Immigration (2001) 194 ALR 244

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Indatissa (2001) 64 ALD 1

Minister for Immigration v MZYTS (2013) 230 FCR 431

NABE v Minister for Immigration (No 2) [2004] FCAFC 263

NAHI v Minister for Immigration [2004] FCAFC 10

NBKT v Minister for Immigration (2006) 156 FCR 419

Rokobatini v Minister for Immigration (1999) 90 FCR 583

SGBB v Minister for Immigration (2003) 199 ALR 364

Applicant:

GOT18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 674 of 2018

Judgment of:

Judge Driver

Hearing date:

24 June 2020

Delivered at:

Sydney by telephone to Perth

Delivered on:

29 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr M Crowley, pro bono publico

Solicitors for the Applicant:

AUM Legal

Counsel for the Respondents:

Ms S Oliver

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 12 June 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 674 of 2018

GOT18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 21 November 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant, a citizen of Sri Lanka, arrived in Australia (Christmas Island) on 17 August 2012 as an unlawful maritime arrival.[1] He was first questioned at Christmas Island on 22 August 2012, when he made a claim of political persecution. A second interview was conducted at a detention centre on 16 January 2013 when he reiterated his claim. On 12 February 2013, the applicant lodged an application for a protection (Class XA) visa that was deemed invalid.[2] On 20 August 2015,…

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 1697
Decision Date: 29 July 2020

CaseChat Overview and Summary

The applicant, GOT18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm if returned to Sri Lanka. The IAA had found that the applicant's fears were not well-founded.

The central legal issues before the court were whether the IAA had failed to consider a specific claim made by the applicant, and whether the IAA had misapplied section 5J of the *Migration Act 1958* (Cth) in its assessment of the applicant's claims. The court was required to determine if either of these grounds constituted a jurisdictional error.

Judge Driver found that the IAA had adequately considered the claims made by the applicant and had not misapplied section 5J of the *Migration Act*. The Authority's assessment of the applicant's fears was open to it on the evidence before it. Consequently, the court concluded that no jurisdictional error had occurred. The application for judicial review was dismissed.

Orders