DAK16 v Minister for Immigration - [2018] FCCA 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAK16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2021

Catchwords:
MIGRATION – application for judicial review – whether there was procedural unfairness – whether there was a failure to review claims of the Applicant – whether there was a failure to afford natural justice – new claims not raised before the Tribunal – no error of law or procedure – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(c), 476(2)(a)

Cases cited:

DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308

MZXHY v Minister for Immigration [2007] FCA 622 [8].

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZJMG v Minister for Immigration [2008] FCA 1145

Applicant:

DAK16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2242 of 2016

Judgment of:

Judge McNab

Hearing date:

13 July 2018

Date of Last Submission:

13 July 2018

Delivered at:

Melbourne

Delivered on:

26 July 2018

REPRESENTATION

Applicant in person

Counsel for the First Respondent:

Mr Moloney

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 14 October 2016 is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG2242/2017

DAK16

Applicant

And

MINISTER FOR IMMIGRATIO NAND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before the court by way of an application filed on 14 October 2016. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 September 2016 to affirm a decision of a delegate of the First Respondent not to grant the Applicant a Protection (class XA) Visa (‘the Visa’).

Background

The relevant facts in the chronology of this matter have been accurately set out in material prepared on behalf of the First Respondent and are replicated exactly below with citations omitted:
3. The Applicant is a 28 year old male citizen of Pakistan. He first arrived in Australia on 23 September 2014 as the holder of a Student (Class TU) (Subclass 573) visa.
4. On 30 December 2014, the Applicant lodged an application for a Protection (Class XA) visa, and on 7 July 2015, the visa application was refused.
5. On 5 August 2015, the Applicant applied to the Tribunal for review of the visa refusal decision. On 8 September 2016, the Applicant appeared before the Tribunal to give evidence and present arguments assisted by an Urdu interpreter.
6. The Tribunal affirmed the delegate’s decision on 12 September 2016.
Otherwise the claims made by the Applicant and the consideration of them is set out at [5] below.

Grounds of review

The application for judicial review contained nine paragraphs. The affidavit filed 14 October 2016 set out a further 11 grounds. The characteristics of the grounds of review are summarised as follows:
·Complaints…

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: [2018] FCCA 2021
Decision Date: 26 July 2018

CaseChat Overview and Summary

In DAK16 v Minister for Immigration, the applicant, DAK16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant DAK16 a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing DAK16's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge McNab found that the delegate had indeed failed to consider a crucial piece of evidence that was central to DAK16's claim for the visa. This failure constituted a failure to take into account a relevant consideration, which rendered the decision-making process legally flawed. The Court applied the principles of administrative law concerning jurisdictional error, emphasizing that a decision-maker must genuinely consider all relevant material placed before them.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders