FEDERAL COURT OF AUSTRALIA

DHP17 v Minister for Home Affairs [2019] FCA 15

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed with costs.

3.    The matter be remitted to the Federal Circuit Court for trial on all issues apart from grounds 1 and 2 raised in the Court below.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an application for leave to appeal orders made by the Federal Circuit Court on 26 June 2018. It dismissed the Applicant’s proceeding in that Court summarily on a show cause basis pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that there was no arguable case for jurisdictional error. An appeal from such a decision requires leave.

2    Leave should be granted and the appeal allowed with costs.

3    In the Federal Circuit Court the Applicant had sought to set aside a decision of the Immigration Assessment Authority (‘Authority’) which had affirmed an earlier decision of a delegate of the Minister. The delegate and the Authority had both concluded that the Applicant was not entitled to the issue of a Safe Haven Enterprise Visa (a kind of protection visa).

4    That application was pursued on three grounds none of which the Federal Circuit Court thought viable. It did not accept that the Authority had denied him procedural fairness by failing to consider all of his circumstances because at the hearing the Applicant did not point to any such circumstances. It rejected an argument that the Authority had failed to consider that the Applicant had a problem understanding the interpreter who assisted him during his interview by the delegate. The Court did so on the basis that the Authority had explicitly considered that matter.

5    The Court also rejected a submission that the Authority had erred in not relying upon an excerpt from a report prepared by the United Nations Committee Against Torture entitled ‘Concluding Observations on the Fifth Periodic Report of Sri Lanka’ (‘UNCAT Report’). The Authority thought that whilst the UNCAT Report suggested that numerous individuals suspected of having even a remote link with the LTTE had been abducted and subjected to torture, it made no further use of the UNCAT Report because ‘it does not specify when such occurrences happened or the circumstances’. The Court below thought this reasoning was a legitimate basis for the Authority’s decision to place no weight upon the UNCAT Report.

6    In this Court the Applicant would seek to review these three matters. I do not think either of the first two arguments has any prospect for the reasons given by the Federal Circuit Court. As in the Court below the Applicant did not explain in this Court what the circumstances were which the Authority had failed to consider. The Authority did explicitly deal with the translation issue at [31]-[32]. The Authority had noted the submission made by the Applicant’s representative that no adverse inference should be drawn from the inconsistencies in his evidence to the delegate as these could be seen as deriving from communication issues which were evident during his interview. It then rejected this argument concluding that the submissions did not ‘sufficiently address the concern I have regarding the changes in the Applicant’s evidence’. It also noted in the same paragraph that twice during the interview the Applicant was asked whether he understood the interviewer and twice he said that he did. In light of that a contention that the Authority failed to consider this matter is not tenable.

7    As to the third argument concerning the UNCAT Report I agree with the Court below that the reason given by the Authority for placing no weight (or implicitly doing so) was open to it in the sense that a lack of particularity is a rational basis for such a conclusion. However, that is not the end of the matter. The Court below did, with respect, appear to overlook one aspect of the Applicant’s argument. The Authority had placed reliance on a report presented by the Department of Foreign Affairs and Trade dated 24 January 2017 entitled ‘DFAT Country Report: Sri Lanka’ (‘DFAT Report’). The Applicant submitted in his grounds of review in the Court below that, as with the UNCAT Report which it declined to use, the DFAT Report also did not refer with particularity ‘to when certain occurrences occurred’ but the Authority had been content to rely upon it. In practical sense, this ground is one of inconsistency.

8    There are two issues which arise from this argument. The first is whether the approach of the Authority to the two reports is inconsistent when regard is had to their contents. The second is whether, assuming that it can be shown that the Authority did act inconsistently in its treatment of the two reports, this discloses a judicial review ground.

9    Both of these matters raise questions of substance which warrant trial. Accordingly, the Court erred in dismissing the proceeding summarily because it cannot be said that the Applicant did not have an arguable case of jurisdictional error. Out of deference to the judge at first instance I would say that whilst the point does appear as part of Ground 3(e) (’The DFAT report too relied upon by the delegate not refer to when certain occurrences occurred’) one could easily blink and miss it.

10    The conclusion in the preceding paragraph requires that leave to appeal be granted and the appeal allowed with costs. The matter will be remitted to the Federal Circuit Court for trial apart from grounds 1 and 2 raised in the Court below which the trial judge was correct to dismiss summarily. In light of that conclusion it is not necessary to deal with the remaining grounds in this Court (none of which were raised in the Court below).

Associate:

Dated:    17 January 2019