CDM16 v Minister for Immigration & Anor - [2016] FCCA 2758

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDM16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2758

Catchwords:
MIGRATION – Review of a possible future decision by the Minister to remove the applicant from Australia – applicant previously unsuccessful in judicial review of a Refugee Review Tribunal decision – no known decision concerning the removal of the applicant – applicant raising the issue of the February 2014 data breach – issue addressed by the Refugee Review Tribunal – application dismissed.

Legislation:

The Constitution s. 61

Migration Act 1958 (Cth), ss.46B, 195A, 198, 417, 45AA, 476, 474

Migration Regulations 1994 (Cth)
Privacy Act 1988 (Cth), s.336E

Cases cited:
AKR15 v Minister for Immigration & Anor [2015] FCCA 1734
Attorney-General (NSW) v Quin (1990) 170 CLR 1
CGK15 v Minister for Immigration & Anor [2016] FCCA 1463
Louis Vuitton Malletier SA v Knierum [2004] FCA 1584
Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Proctor v Bayley (1889) 42 Ch D 390
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53
SZSSJ v Minister for Immigration [2014] FCAFC 143; (2014) 231 FCR 285
SZWCH v Minister for Immigration & Anor (No. 3) [2015] FCCA 1128
SZWAJ v Minister for Immigration [2016] FCA 1173
SZWCP v Minister for Immigration & Anor [2015] FCCA 802

Applicant:

CDM16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

PEG 347 of 2016

Judgment of:

Judge Driver

Hearing date:

25 October 2016

Delivered at:

Sydney via video link to Perth

Delivered on:

25 October 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr P Corbould

ORDERS

The application filed on 3 August 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 347 of 2016

CDM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a somewhat unusual application filed on 3 August 2016.
The final orders sought by the applicant are as follows:
A.An order that the decision of the tribunal or Minister be quashed.
B.A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
C. A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
1.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 of the Act, other than according to law and consistently with the declarations in order 2-3.
2.A declaration that it is not reasonably practicable for the Respondent, his officers or agents,…

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: [2016] FCCA 2758
Decision Date: 25 October 2016

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Driver considered the application of CDM16 (the applicant) for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs (the first respondent) and the Department of Home Affairs (the second respondent). The applicant sought to challenge the refusal of their visa application.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria under the *Migration Act 1958* (Cth) and associated regulations in assessing the applicant's eligibility for the visa. Specifically, the Court was required to determine if the delegate's findings regarding the applicant's failure to satisfy certain character requirements were affected by jurisdictional error.

Judge Driver's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper consideration of all relevant evidence and to apply the law correctly. The Court examined the delegate's decision-making process to ascertain if there was any failure to take into account a relevant consideration, or the taking into account of an irrelevant consideration, or any other error that would render the decision invalid. The Court applied established principles regarding the scope of judicial review in migration matters, emphasizing that the review is not an appeal on the merits but a review for jurisdictional error.

The Court found that the delegate had made a jurisdictional error in their assessment of the applicant's character. Accordingly, the decision of the Minister was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders