BRZ17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: MOSHINSKY J
• Judgment Date: 17 May 2019
• Neutral Citation: [2019] FCA 677
• Date: 17 May 2019

FEDERAL COURT OF AUSTRALIA

BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677

Appeal from:	BRZ17 v Minister for Immigration & Anor [2018] FCCA 2168
File number:	VID 1050 of 2018
Judge:	MOSHINSKY J
Date of judgment:	17 May 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia – protection visa – fast-track review process – whether legally unreasonable for the Immigration Assessment Authority not to have exercised the power in s 473DC of the Migration Act 1958 (Cth) to invite the appellant to attend an interview – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 36, 57, 65, 424A, 473CA, 473DA, 473DC, 473DD, 473GA, 473GB
Cases cited:	CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 Minister for Home Affairs v AYJ17 [2019] FCA 591 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Date of hearing:	20 February 2019
Date of last submissions:	1 March 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr OM Ciolek
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		VID 1050 of 2018
BETWEEN:	BRZ17 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	17 MAY 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.

THE COURT DIRECTS THAT:

3. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement:

   1. within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

   2. within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

3. in the absence of any agreement having been reached within a further 14 days, 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

MOSHINSKY J:

Introduction

1. The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth). The IAA decided to affirm a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Safe Haven Enterprise Visa (SHEV).

2. The appellant relies on three grounds of appeal. One of these grounds includes a contention that the IAA acted in a manner that was legally unreasonable in that it did not exercise the power in s 473DC(3) to invite the appellant to attend an interview. The context for this ground includes a submission to the IAA by the appellant’s then representative requesting that the appellant be given a hearing.

3. For the reasons set out below, the appeal is to be dismissed.

Background

4. The following statement of the background facts is substantially based on the reasons for judgment of the primary judge (the Reasons).

5. The appellant is a citizen of Sri Lanka. He was born in Jaffna in the northern province of Sri Lanka and is of Tamil ethnicity. On 14 October 2012, he arrived in Australia as an irregular maritime arrival.

6. On 5 January 2013, the appellant was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (the entry interview). A copy of a form relating to this interview is included in the Appeal Book. The form is headed “Irregular Maritime Arrival Entry Interview”. It indicates that the interview occupied approximately 1 hour and 15 minutes. The first page of the form includes a section headed “Important Information”, comprising a series of paragraphs. The first two paragraphs were as follows:

I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

7. The balance of the form comprised a series of questions followed by boxes or fields for answers to be inserted. These have been completed; the responses have been typed into the form (rather than handwritten). The completed form is 16 pages in length.

8. Question 1 in Part C of the form was: “Why did you leave your country of nationality (country of residence)?”. The following was recorded in the field immediately after this question:

tell me what happened to your personally to make you leave Sri Lanka?

there was no problem after we went back to our village after the war. we had shelter and i started studying, each Sunday we had to attend a CID meeting. it was a must that we went. we went to take licence, they threatened us that if we stand in a group we will shoot you. i got my licence. Other people are being abducted in the white van. many people are having problems that is why i came. has anything happened to you recently? if i want to go to Jaffna and study i can not study, they will come and watch us. who is they? CID and the army. why would they do that? they are watching the young people they are going to do something. have they stopped you from doing anything else? no. when did they threaten to shoot you? 04/2012. where were you? in my village at the junction. what licence were you getting? car licence. explain to me why they would shoot you if you stand in groups? i do not know we just standing there to learn driving.

are there any other reasons you left Sri Lanka? no.

my next lot of questions require a yes or no answer and if i need more information i will ask for it

Question 6(a) in Part C of the form was: “Were you ever arrested or detained by the police or security organisations?” The response to this question is recorded as “No”.

9. The appellant was invited to make an application for a SHEV. He lodged an application for this visa on 11 April 2016. In his application he claimed to fear harm on the basis of his Tamil ethnicity, and...