DEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 874

FEDERAL COURT OF AUSTRALIA

DEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 874 Appeal from: DEE16 v Minister for Immigration & Anor [2019] FCCA 2966

File number: VID 1229 of 2019

Judge: ANDERSON J

Date of judgment: 2 July 2020

Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia (Circuit Court) dismissing application for judicial review of decision of Immigration Assessment Authority (Authority) not to grant Safe Haven Enterprise visa – appellant claimed that his brother, who was forcibly recruited by the LTTE, was subsequently imprisoned and monitored by authorities in Sri Lanka – appellant claimed to fear harm because there was a real risk of him being subject to torture in Sri Lanka because of, among other things, his brother's former involvement with the LTTE – whether Authority misapplied the real chance test – whether Authority made irrational, illogical or unreasonable findings of fact based on unsupported assumptions regarding the behaviour of the Sri Lankan authorities Held: appeal dismissed – Authority did not misapply the real chance test or otherwise engage in irrational, illogical or unreasonable fact-finding

Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 46A(2) 473CA, 473DB(1)

Cases cited: Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430 CDW18 v Minister for Home Affairs [2019] FCA 270 Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; 169 CLR 379 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 DEE16 v Minister for Immigration & Anor [2019] FCCA 2966 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 MZYTS v Minister for Immigration and Citizenship [2013] FCAFC 114 Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226; (2006) Aust Torts Reports ¶81–866 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; 240 FCR 261