SRI LANKAN CITIZEN WHO APPLIED FOR A SAFE HAVEN ENTERPRISE VISA SEEKS COURT DETERMINATION ON WHETHER THE FCCA JUDGE ERRED IN DISMISSING HIS APPLICATION FOR JUDICIAL REVIEW�
This case involves the appellant alleging that the Federal Circuit Court of Australia (FCCA) erred in failing to be satisfied as to the existence of an arguable case that the Immigration Assessment Authority’s (IAA) decision involved jurisdictional error.
Facts:
The appellant applied for a Safe Haven Enterprise visa (SHEV). A delegate of the Minister for Immigration and Border Protection refused the appellant’s visa application. The appellant then applied to the FCCA for judicial review of the IAA’s decision. The appellant represented himself before the FCCA.
The FCCA did not have records before it of either the screening interview or the SHEV interview. On the appeal, the appellant sought to rely upon the SHEV interview transcript. The Minister did not oppose the tender of that transcript and additionally sought to rely on the “Enhanced Screening interview transcript proforma”. In the absence of any opposition, both documents were admitted as evidence on the appeal.
The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (FCCA). In that decision, the FCCA judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA).
The alleged errors are factual errors concerning aspects of the appellant’s claims for protection. The appellant contended that the IAA’s errors demonstrate that the IAA “declined its jurisdiction” and that, when considered separately or cumulatively, the errors reveal jurisdictional error on the part of the IAA. In respect of most grounds of appeal, the appellant’s contention was to the effect that the IAA had either mistaken the facts or reached a result that was plainly unreasonable.
The IAA’s ultimate finding that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958.
The FCCA judge recorded the appellant’s case that the IAA had made findings without any evidentiary basis in relation to all of the grounds of review in the FCCA. The FCCA judge rejected that argument, stating that the available evidence supported the IAA’s findings and, in any event, the FCCA was entitled to accept the IAA’s decision record as accurately reflecting the matters to which it referred.
Issue: Did the FCCA judge err in failing to be satisfied as to the existence of an arguable case that the IAA’s decision involved jurisdictional error?
Law:
Analysis:
The court concluded that the IAA arguably made errors in connection with the following findings:
(1) The appellant failed to mention “earlier” the killing of a friend by the Sri Lankan CID.
(2) In his SHEV interview, the appellant did not refer to the claims in his written statement that the police refused to take his statement because they suspected he was involved with the LTTE; and that at the same time, the LTTE thought he was working for army intelligence and that he tipped off the army to kill his Tamil friend.
(3) The appellant made contradictory statements in his SHEV interview about his manager and the LTTE.
(4) The applicant provided contradictory evidence about whether the other members of his family owed the money to him.
(5) R is recorded in the translated documents submitted by the appellant as having collected the money with the appellant for the boat trip to Australia.
Before concluding that the FCCA judge erred in finding that there was no arguable case of jurisdictional error, it is necessary to consider whether the IAA’s arguable errors of fact were material to the IAA’s ultimate conclusion. The IAA’s conclusion that there is not a real chance of serious harm to the appellant if he returns to Sri Lanka now or in the reasonably foreseeable future did not take account of the claims that the IAA rejected. The court doubts that (4) is material to that conclusion, however, the other matters were arguably material to the appellant’s rejection of the truthfulness of the appellant’s protection claims.
In relation to two of these matters (being (1) and (4)), the court have concluded that the FCCA judge mistook the facts. In relation to the other three matters, the FCCA judge was not in a position to identify the arguable error because his Honour was not provided with the SHEV transcript.
Conclusion: Accordingly, the court is persuaded that the FCCA judge erred in his Honour’s conclusion that the appellant was unable to demonstrate an arguable case of jurisdictional error by the IAA and the appeal will be allowed with costs.
