EVS17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 11 February 2019
• Neutral Citation: [2019] FCAFC 20
• Date: 11 February 2019

FEDERAL COURT OF AUSTRALIA

EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

Appeal from:	EVS17 v Minister for Immigration & Anor [2018] FCCA 1066
File number:	NSD 867 of 2018
Judges:	ALLSOP CJ, MARKOVIC AND STEWARD JJ
Date of judgment:	11 February 2019
Catchwords:	MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review – where the Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant the appellant a Safe Haven Enterprise visa – where the Authority was not given all the material provided by the appellant to the delegate when the Authority made its decision as required by s 473CB(1)(b) of the Migration Act 1958 (Cth) (Act) – whether the Authority was prevented from conducting its review under Pt 7AA of the Act such that jurisdictional error was established – appeal allowed.
Legislation:	Migration Act 1958 (Cth) ss 418(3), 473BA, 473CB, 473CC, 473DC Migration Regulations 1994 (Cth) r 4.43
Cases cited:	AKK17 v Minister for Immigration and Border Protection [2017] FCCA 2486; 327 FLR 343 Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 WAGP v Minister for Immigration [2006] FCAFC 103; 151 FCR 413
Date of hearing:	13 November 2018
Date of last submissions:	23 November 2018 (Appellant) 19 November 2018 (First Respondent)
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	59
Counsel for the Appellant:	Mr A Byrne
Solicitor for the Appellant:	D’Ambra Murphy Lawyers
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	HWL Ebsworth

ORDERS

		NSD 867 of 2018
BETWEEN:	EVS17 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES:	ALLSOP CJ, MARKOVIC AND STEWARD JJ
DATE OF ORDER:	11 February 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court of Australia on 1 May 2018 be set aside and in lieu thereof order that:

   1. a writ of certiorari be issued quashing the decision of the second respondent dated 10 October 2017;

   2. the matter be remitted to the second respondent for determination according to law; and

   3. the first respondent pay the applicant’s costs.

3. The first respondent pay the appellant’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

THE COURT:

1. This is an appeal from a decision of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for review of a decision of the second respondent (Authority) made on 10 October 2017. The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (SHEV).

background

2. The appellant, a citizen of Sri Lanka from the Eastern province and a Tamil of Hindu faith, arrived in Australia on 21 October 2012.

3. On 29 February 2016 the appellant applied for the SHEV on the basis of his claim to fear harm because of his ethnicity as a Tamil and his political opinions.

4. The Authority’s decision records the appellant’s claims to include that:

1. in or around March 2009 the appellant had been questioned by the Sri Lankan Army (SLA) due to their suspicion that he was assisting the Liberation Tigers of Tamil Eelam (LTTE) by fixing their vehicles as he was a mechanic. The SLA hit the appellant with rifle butts and, since that time, he has had difficulty standing straight;

2. the appellant went to hospital after that incident and, upon his release, the SLA asked him to report to their camp again. His father went in his place and was questioned about what the appellant had told the hospital about his injuries. His father told the SLA that he did not know. His father was told to return with the appellant. The appellant hid but was subsequently told by his aunt that his father had been taken by the SLA;

3. the appellant then went to the SLA camp with his aunt. His father was released but the appellant was detained until the following day, during which time he was tortured. He said that chilli was placed in a cut in his knee and his big toe nail was ripped out. The SLA told him not to tell anyone about his torture, took him across the street and left him near a school;

4. on another occasion the appellant repaired a vehicle for the SLA in the evening which stopped working the following day. The SLA took the appellant from his workplace to where the vehicle was stuck and beat him; and

5. he was beaten three times between 2009 and 2012 by Cheddipalayam forces because he did not assist them to repair their trucks.

5. On 15 December 2016 a delegate of the Minister refused the application for the SHEV. Attachment A to the decision record was titled “Material before the decision maker” and relevantly included “Departmental file CLF2015/79684 relating to the applicant” but provided no further description of the content of that file.

6. On 21 December 2016 the delegate’s decision to refuse to grant the appellant the SHEV was referred to the Authority. On 10 October 2017 the Authority affirmed the decision of the delegate not to grant the appellant the SHEV.

The authority’s decision

7. The Authority set out the appellant’s claims of beatings and torture by the SLA and Cheddipalayam forces at [9] and [10] of its reasons.

8. The Authority identified a number of discrepancies in the appellant’s evidence including in relation to the incidents of claimed beating and torture. At [16] of its reasons the Authority concluded that, in light of what it described as “the not insignificant changes and inconsistencies” in the appellant’s evidence about the incidents he was involved in from 2009, and notwithstanding that a supporting letter from a member of parliament provided a level of corroboration for his claim that unknown men were searching for him, “based on the totality of [the appellant’s] evidence”, it was satisfied that the appellant had “exaggerated, embellished and fabricated his evidence on (sic) those incidents in order to boost his claims for protection”. The Authority continued:

… I reject his claims that he was detained, questioned and beaten by the SLA in March 2009; that they subsequently detained his father; and that he turned himself in to secure his father’s release and was then tortured by the SLA. I am prepared to accept that while he was working as a mechanic in Kalmunai from 2002 to 2005 the SLA on some occasions attended the garage where he worked, beat him and others and asked them to work on SLA vehicles, and on one occasion they picked him up from that work in a jeep and took him to a broken down vehicle that he had previously worked on and beat him. I reject his claim that on three occasions between 2009 and 2012 he was beaten by the Cheddipalayam forces because he refused to work on their trucks.

9. The Authority then considered whether the appellant was a refugee for the purposes of s 5H(1) of the Migration Act...