DCU18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] FCA 1817
• Court: Federal Court
• Date: 21 December 2020

Federal Court of Australia

DCU18 v Minister for Home Affairs [2020] FCA 1817

Appeal from:	DCU18 v Minister for Home Affairs [2019] FCCA 1458
File number(s):	WAD 327 of 2019
Judgment of:	MORTIMER J
Date of judgment:	21 December 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court – where the Immigration Assessment Authority relied on discrepancies between age determination interview, entry interview and SHEV application interview – whether IAA failed to consider relevant information – irrationality – whether exercise of power legally unreasonable – appeal allowed.
Legislation:	Migration Act 1958 (Cth)
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 531 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Raibevu v Minister for Home Affairs [2020] FCAFC 35 W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	113
Date of last submission/s:	19 October 2020
Date of hearing:	26 October 2020
Counsel for the Appellant:	Ms M Brady
Solicitor for the Appellant:	Allens
Counsel for the Respondents:	Mr P Macliver
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		WAD 327 of 2019
BETWEEN:	DCU18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	MORTIMER J
DATE OF ORDER:	21 DECEMBER 2020

THE COURT ORDERS THAT:

1. The appellant has leave to rely on the draft amended notice of appeal annexed to his interlocutory application filed on 14 September 2020.

2. The appeal be allowed.

3. Order 1 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside and in lieu thereof, order that the decision of the second respondent made on 11 May 2018 be set aside and the matter be remitted to the second respondent for determination according to law.

4. Order 2 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside.

5. The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1. This is an appeal from a decision of the Federal Circuit Court dismissing a judicial review application in relation to a decision of the Immigration Assessment Authority.

2. The appellant was an unaccompanied minor at the time of his arrival into Australia, aged 17. He was accepted by the Authority to be of Tamil ethnicity and to be a citizen of Sri Lanka. He arrived in Australia in October 2012, having travelled to Australia from northern Sri Lanka by boat. He was considered an “irregular maritime arrival” by Australian immigration authorities, and his protection visa application has progressed through the “fast track” review process under Part 7AA of the Migration Act 1958 (Cth).

3. The appellant’s protection claims centred around his Tamil ethnicity and the political associations he claimed would be imputed to him because of that, together with (and in part because of) his father’s claimed involvement with the Liberation Tigers of Tamil Eelam (LTTE).

4. The relevant procedural chronology is as follows. After his entry into Australia, the appellant was taken into immigration detention on Christmas Island. Relevantly to the grounds of appeal, while in immigration detention, on 26 November 2012, the appellant was first required to participate in an “age determination interview”. That process confirmed he was a minor, and this was accepted by the Minister’s delegate. A Tamil interpreter was present at that interview. An audio recording and written record of this interview were in evidence before the Authority, and Federal Circuit Court. Also while the appellant was detained, on 8 December 2012, the appellant participated in an entry interview.

5. There is then a very long gap in the chronology from these events until the appellant was able to apply for a visa. It is apparent from the appellant’s protection visa application that the appellant was held in immigration detention from his arrival in Australia in November 2012 until sometime in April 2013.

6. On 12 August 2016 the Minister exercised his power under s 46A(2) to lift the bar imposed by s 46A(1) of the Migration Act, and permitted the appellant to apply for a protection visa. The letter that provided the appellant with this information also invited him to accept assistance with his application from a registered migration agent, who had been contracted as a provider under the Department’s “Primary Application and Information Service”.

7. On 24 November 2016, the appellant applied for a Safe Haven Enterprise Visa (SHEV) Subclass XE-790. I infer from the fact that the appellant does not speak English, and from the content of the document, that the appellant’s statement attached to his visa application was prepared with the assistance of his migration agent. That statement commenced with the following:

Summary of my claims

1. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the Australian Department of Immigration and Border Protection.

Entry Interview

2. Shortly after my arrival in Australia, I was interviewed (“the Entry Interview”). During the Entry Interview I was asked a number of questions including dates, biodata and my reasons for corning to Australia. I was not made aware before or during the Entry Interview that the information I provided during this interview would be used for the purposes of assessing my...