DDP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] FCA 275
• Court: Federal Court
• Date: 25 March 2021

Federal Court of Australia

DDP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 275

Appeal from:	DDP16 v Minister for Immigration and Anor [2020] FCCA 1248
File number:	VID 425 of 2020
Judgment of:	WHEELAHAN J
Date of judgment:	25 March 2021
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Immigration Assessment Authority – new grounds raised on appeal – leave to rely on new grounds – whether the Authority’s decision was affected by legal unreasonableness in relying on inconsistencies in the appellant’s evidence as one basis for rejecting the appellant’s claims – whether the Authority erred by failing to consider the limited scope of the interview evidence and the appellant’s psychological diagnosis in assessing the significance of appellant’s inconsistent evidence – whether the Authority failed to consider the general risk of harm to the appellant by the Sri Lankan authorities – no sufficient merit in new grounds – no jurisdictional error – Authority’s decision not affected by legal unreasonableness and did not fail to consider relevant considerations – leave to rely on new grounds refused – appeal dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5J, 5H, 36(2)(a) and (aa), 46A(1) and (2), 473CB and DD
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 BXT17 v Minister for Home Affairs [2021] FCAFC 9 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	73
Date of hearing:	3 December 2020
Counsel for the Appellant:	Mr A Krohn
Solicitor for the Appellant:	Vrachnas and Co
Counsel for the Respondents:	Mr J Barrington
Solicitor for the Respondents:	Mills Oakley

ORDERS

		VID 425 of 2020
BETWEEN:	DDP16 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	25 March 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellant appeals a decision of the Federal Circuit Court made on 27 May 2020, which dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed an earlier decision of a delegate of the Minister to refuse to grant the appellant a Safe Haven Enterprise (Subclass 790) visa. For the following reasons, the appeal should be dismissed with costs.

Background

2. The appellant is a 36 year old citizen of Sri Lanka. On 24 September 2012, the appellant arrived at the Cocos Islands as an unauthorised maritime arrival.

First application for a protection visa – invalid application

3. On 28 October 2013, the appellant made an application for a Permanent Protection (Subclass 866) visa. The application was supported by a statutory declaration dated 28 October 2013. However, by the operation of s 46A(1) of the Migration Act 1958 (Cth), that application was deemed to be invalid.

Second application for a protection visa – valid application

4. On 17 September 2015, the Department notified the appellant that the Minister had exercised his power under s 46A(2) of the Act to “lift the bar” to allow the appellant to make a valid application for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.

5. On 12 January 2016, the appellant made an application for a Safe Haven Enterprise (Subclass 790) visa, which is a class of “protection visa” by operation of s 35A(3A) of the Act. The appellant attached to his application some identity documents and a statutory declaration made on 7 January 2016. By his application and statutory declaration, the appellant made the following claims –

1. He is a Tamil Hindu, who lived his entire life in the Jaffna province in the north of Sri Lanka before departing to seek asylum in Australia.

2. Since his childhood, he was subjected to harassment, intimidation and beating by the Sri Lankan Army (SLA), which occupied the Jaffna province.

3. After stopping his schooling because of the war situation, he worked in his uncle’s garage, and later as a three wheel taxi driver.

4. In 2004-2005, there was a ceasefire between the SLA and the Liberation Tigers of Tamil Eelam (LTTE). During that time, his uncle’s garage was frequented by LTTE leaders, and he was compelled to transport people “for the LTTE functions”.

5. In 2006, the ceasefire collapsed, and the SLA started arresting and killing people who were suspected of having connections to the LTTE.

6. On or about 20 April 2006, he witnessed an incident which he described in the following terms –

… I have witnessed four of my colleagues (Three wheel drivers) were shot and killed by persons either suspected or closely working with the Sri Lankan Army. The assassins came on a motor bike and dragged out my colleagues Kiso, Thasan, Kannan and Kavi of their vehicles and shot them at point blank range. Another passer-by who happened to walk past the three wheel stand was also shot and killed by them. It was at night and the assassins [wore] helmets and not possible to identify them.

7. Immediately after the incident, he and three of his colleagues were taken by the SLA and detained at an SLA camp for approximately two months. He was interrogated about his association with the victims of the incident and his involvement with the LTTE, and he was beaten as the SLA believed that he was associated with the LTTE.

8. After his release, he was forced to work as an informer for the SLA. He was required to provide the SLA with details of the passengers whom he serviced in his three wheel taxi. He felt that his life was in danger as the SLA kept a close eye on him and monitored his movements, that he was a “traitor” to other villagers, and that he was disliked and ostracised.

9. He informed the SLA about customers who used his taxi service from the time of...