ASB17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 07 March 2019
• Neutral Citation: [2019] FCAFC 38
• Date: 07 March 2019

FEDERAL COURT OF AUSTRALIA

ASB17 v Minister for Home Affairs [2019] FCAFC 38

Appeal from:	ASB17 v Minister for Immigration & Anor [2018] FCCA 2391
File number:	VID 1211 of 2018
Judges:	Griffiths, MORTIMER AND Steward jJ
Date of judgment:	7 March 2019
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse protection visa – whether Authority erred by unreasonably failing to consider whether to exercise discretion under s 473DC of the Migration Act 1958 (Cth) or by unreasonably failing to exercise that discretion – whether fact-finding by Authority about appellant’s post-interview material irrational or legally unreasonable – appellant failed to prove that Authority did not give any consideration to whether to exercise discretion under s 473DC – any failure by Authority to consider exercising or to exercise discretion under s 473DC otherwise not legally unreasonable – fact-finding by Authority about appellant’s post-interview material not irrational or legally unreasonable – appeal dismissed ; ADMINISTRATIVE LAW – use of language of inconsistency by administrative decision-makers – need for caution in use of label of inconsistency – care required by administrative decision-makers in weighing and assessing probative value of accounts provided by applicants
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473DC
Cases cited:	ASB17 v Minister for Immigration & Anor [2018] FCCA 2391 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600
Date of hearing:	15 February 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Appellant:	Mr R Knowles with Mr J P W Maloney
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr N M Wood
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		VID 1211 of 2018
BETWEEN:	ASB17 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGEs:	Griffiths, MORTIMER AND Steward jJ
DATE OF ORDER:	7 march 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3. The parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs referred to in paragraph 2 by 4 pm on 21 March 2019.

4. In the absence of any agreement having been reached by 4 pm on 21 March 2019, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from orders made by the Federal Circuit Court on 31 August 2018: ASB17 v Minister for Immigration & Anor [2018] FCCA 2391. There are two grounds of appeal, both essentially concerned with the same conduct by the Immigration Assessment Authority: namely the approach it took to two letters and a set of post-hearing submissions, all of which were sent to the Minister’s delegate before the delegate made a decision on the appellant’s protection visa application.

2. The appellant contends that:

1. the Authority erred by unreasonably failing to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (“the Act”); or by unreasonably failing to exercise that discretion; and alternatively

2. the fact-finding by the Authority about the two letters and post-hearing submissions was not open to the Authority, in the sense of being either irrational in a way which affected its jurisdiction or legally unreasonable.

Background

3. The appellant arrived in Australia as an unaccompanied minor, aged approximately 15 years. The way that he claimed to have left Sri Lanka and the circumstances in which he claimed to have left it are relevant to the appellant’s grounds of appeal. In his first statutory declaration dated 5 September 2013, the appellant relevantly stated:

I was very young during the war and my parents don’t like to talk to me about it. After the war ended, the Sri Lankan Army established bases throughout our region. Since the end of the war, there have been problems for us, and soldiers have continued to abduct people, rape women and target wealthy Tamils. All Tamil families are suspected of association with the LTTE and treated poorly by the army.

A few months before I left Sri Lanka, my cousin - the son of my brother’s elder brother, [REDACTED] - was abducted when he was returning from his evening classes. When he was released we found out that he had been beaten and tortured. He wasn’t given food for days. His kidnappers asked him for my uncle’s phone number in order to demand money. At first he refused to give the phone number, but he gave it to them after he was beaten. The kidnappers demanded 30 crore rupees. I don't know how much my uncle was able to pay. He is a goldsmith.

The night before the night I left Sri Lanka my father asked me to pack some clothes and get in a van he had borrowed. I didn’t know where or why I was going. My father told me he had received a phone call from a man saying that his son would be killed and he would have to pay a ransom. He said he was very worried and didn’t want to lose me.

Although I don’t know the details, I think they may have targeted my father because he works in a jewellery shop so he would seem to be a rich Tamil and thought he would pay a ransom because I am his only son. Many Tamils in our community have been kidnapped in similar circumstances.

Leaving Sri Lanka

My father made all the arrangements for me to leave. I fund out that he used his savings and pawned some of my mother’s jewellery to pay. We travelled overnight to Colombo. The next night I was picked in a van heading for Galle and I said goodbye to my father. In Galle we boarded a small boat and then a bigger boat.

If I were forced to return to Sri Lanka

Because the threat against me was made to my father, I do not know all the details, but from what I know I am afraid that I would be kidnapped if I returned to Sri...