ENE17 v Minister for Immigration and Border Protection [2019] FCA 942

ENE17 v Minister for Immigration and Border Protection [2019] FCA 942

The appeal failed because the primary judge did not err in finding that the Authority considered the relevant review material and country information, including material in the UK Home Office report that was relevantly the same in versions 2.0 and 3.0, and because the Authority engaged with the appellant's claims about risk as a Tamil returnee. Leave was granted to raise the bail/guarantor ground, but that ground failed because the Authority relied on the 2017 DFAT Report, made only contingent findings about bail and a possible family guarantor, and DCP16 was directly applicable. Leave to raise the TMVP ground was refused because no explanation was given for not raising it below and it...

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise (subclass 790) Visa / Appeal to the Federal Court of Australia From ENE17 V Minister for Immigration and Border Protection [2018] FCCA 2453
Outcome
Appeal dismissed with costs; leave granted to rely on proposed ground 3 and refused for proposed ground 4.
Legal Topics
['safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'judicial Review' 'jurisdictional Error' 'country Information' 'sri Lankan Tamil Asylum Seeker' 'illegal Departure From Sri Lanka' 'bail and Guarantor on Return to Sri Lanka' 'leave to Raise New Grounds on Appeal']
['migration' 'administrative Law'] ['safe Haven Enterprise Visa' 'fast Track Review' 'immigration Assessment Authority' 'judicial Review' 'jurisdictional Error' 'country Information' 'sri Lankan Tamil Asylum Seeker' 'illegal Departure From Sri Lanka' 'bail and Guarantor on Return to Sri Lanka' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise (subclass 790) Visa / Appeal to the Federal Court of Australia From ENE17 V Minister for Immigration and Border Protection [2018] FCCA 2453

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the Immigration Assessment Authority considered the review material, including the UK Home Office report, as required by s 473DB(1) of the Migration Act 1958 (Cth).' 'Whether the Immigration Assessment Authority failed to engage in an active intellectual process with material concerning danger to Tamils and returnees from overseas.' 'Whether leave should be granted to raise a new ground alleging that the Immigration Assessment Authority made unsupported assumptions about the appellant being granted bail or having a family member act as guarantor on return to Sri Lanka.' 'Whether leave should be granted to raise a new ground alleging that the Immigration Assessment Authority lacked evidentiary support for its finding that the TMVP had renounced paramilitary activities.']

Ratio Decidendi

The appeal failed because the primary judge did not err in finding that the Authority considered the relevant review material and country information, including material in the UK Home Office report that was relevantly the same in versions 2.0 and 3.0, and because the Authority engaged with the appellant's claims about risk as a Tamil returnee. Leave was granted to raise the bail/guarantor ground, but that ground failed because the Authority relied on the 2017 DFAT Report, made only contingent findings about bail and a possible family guarantor, and DCP16 was directly applicable. Leave to raise the TMVP ground was refused because no explanation was given for not raising it below and it...

Court Disposition

Appeal dismissed with costs; leave granted to rely on proposed ground 3 and refused for proposed ground 4.

Orders

  • ['Leave is granted to the appellant to rely on proposed ground 3 of the appeal.' 'Leave is refused to the appellant to rely on proposed ground 4 of the appeal.' 'The appeal is dismissed.' "The appellant must pay the first respondent's costs as agreed or taxed."]