ALJ17 v Minister for Home Affairs [2019] FCA 207

FEDERAL COURT OF AUSTRALIA

ALJ17 v Minister for Home Affairs [2019] FCA 207 Appeal from: ALJ17 v Minister for Immigration & Anor [2018] FCCA 2411

File number: NSD 1744 of 2018

Judge: KENNY J

Date of judgment: 21 February 2019

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court dismissing application for review of a decision of the Immigration Assessment Authority – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473DC

Date of hearing: 21 February 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 33

Solicitor for the Appellant: E Rajadurai

Counsel for the First Respondent: G Johnson

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent submitted to any order, save as to costs

ORDERS NSD 1744 of 2018

BETWEEN: ALJ17 Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: KENNY J DATE OF ORDER: 21 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 29 August 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 11 January 2017. The IAA had affirmed a decision of a delegate of the respondent Minister dated 25 November 2016 to refuse the appellant's application for a Safe Haven Enterprise (Subclass 790) visa. The Federal Circuit Court judgment has the citation ALJ17 v Minister for Immigration & Anor [2018] FCCA 2411. 2 The Court was notified yesterday that a solicitor had filed a notice indicating that he was acting in the appellant's matter. Written submissions were filed for the appellant previously, indicating that they were prepared by a solicitor. The appellant was represented by his solicitor at the hearing of the appeal. An interpreter was also available to assist. 3 During the course of the morning today, the appellant's solicitor sent Chambers an email attaching an unfiled new "draft notice of appeal" dated 21 February 2019. The draft notice of appeal is in the following terms: Ground of Appeal Authority fell into jurisdictional error by constructively failing to identify Convention requirements in facts as found. Particulars Authority, having accepted facts of the case, failed to discern a Convention nexus, based on past LTTE involvement leading to LTTE support, imputed dissent to the government resulting from an incident and TNA support in relation to harm suffered in the past leading to future harm from paramilitary and TMVP working with the government to supress LTTE resurgence. Alternatively Authority failed to apply to facts as found by it or failed to take into account relevant considerations. 4 Precisely why the appellant sent this document is unclear, since substantially the same issues are raised by the appellant's notice of appeal filed on 20 September 2018 and by his written submissions. The appellant did not ultimately seek to file this new document, since I indicated that I would consider all of his submissions in any event. 5 I have considered the issues as outlined in the appellant's written and oral submissions with reference to the notice of appeal as first filed. I have also referred to the proposed "new" notice of appeal where appropriate. 6 The Minister, who was represented by counsel at the hearing, relied on written submissions dated 14 February 2019.