Big15 v Minister for Immigration - [2017] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIG15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 1051

Catchwords:

MIGRATION – Judicial review - International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653
AKR15 v Minister for Immigration and Border Protection [2015] FCCA 1734
CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758
AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740

Applicant:

BIG15

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 41 of 2015

Judgment of:

Judge Young

Hearing date:

11 May 2017

Date of Last Submission:

11 May 2017

Delivered at:

Darwin

Delivered on:

11 May 2017

REPRESENTATION

Applicant:

In person by video link

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 13 July 2015 be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 41 of 2015

BIG15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review following an International Treaty Obligation Assessment or “ITOA” carried out by a departmental officer, who I will call an “assessor”, on 7 July 2015. The purpose of the ITOA was to assess whether Australia owed any non-refoulement obligations to the applicant as a consequence of an event known as the ‘data breach’ when personal details of the applicant and others were published on the Web in February 2014 by accident. The published details included name, birthdate, nationality, place and circumstances of detention and whether or not the detainee had other family members in detention.
The applicant is a Chinese citizen. He arrived in Australia in 2007 on a student visa. His visa was cancelled in 2010. That cancellation was subsequently revoked for technical reasons. The visa, however, was deemed to have lapsed on 15 March 2010. The applicant thereafter failed to depart Australia. In September 2013 he was detained and, as far as I know, has been in detention since.
In October 2013 he made a protection visa application which, according to the Refugee Review Tribunal decision that is included in the court book, included consideration of the applicant’s claims that he or his family had borrowed money from loan sharks or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1051
Decision Date: 11 May 2017

CaseChat Overview and Summary

The applicant, Big15, sought judicial review of a decision made by the Minister for Immigration concerning an International Treaty Obligation Assessment. The core of the dispute revolved around allegations that the Minister had denied Big15 procedural fairness in reaching this assessment. The matter was heard before Judge Young.

The central legal issue before the Court was whether the Minister's decision-making process, in relation to the International Treaty Obligation Assessment, had afforded Big15 the requisite procedural fairness. This required the Court to consider the nature and extent of the procedural obligations owed by the Minister in this context.

Judge Young dismissed the application. The Court found that the process undertaken by the Minister did not breach the principles of procedural fairness. The reasoning focused on the specific requirements of the relevant legislation and the nature of the assessment being undertaken, concluding that Big15 had been afforded a fair hearing in accordance with the law.

Orders