Dang v Minister for Immigration - [2016] FCCA 1426

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANG v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1426

Catchwords:
MIGRATION – Specification of evidentiary requirements – non-judicially determined claim of family violence – application for an extension of time.

Legislation:

Migration Act 1958 (Cth), ss.359, 476, 477, 65, pt.5 of div.5

Migration Regulations 1994 (Cth), cl.801.221 of sch.2, div.1.5 of pt.1, regs. 1.23(10)(c)(i) and (ii), 1.24, 1.25
Instrument number IMMI 12/116 “Specification of Evidentiary Requirements”, legislative instrument F2012L02237

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant:

QUOC TRI DANG

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1097 of 2015

Judgment of:

Judge McNab

Hearing date:

2 June 2016

Date of Last Submission:

2 June 2016

Delivered at:

Melbourne

Delivered on:

30 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Atkins

Solicitors for the Applicant:

Koenig & Simons Solicitors

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The Applicant’s amended application filed 16 November 2015 for an extension of time in which to apply for a remedy be refused.
The Applicant pay the First Respondent’s costs fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1097 of 2015

QUOC TRI DANG

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed on 16 November 2015, the Applicant applied for an Order that the Respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 (“the Act”), in respect of a decision of the then Migration Review Tribunal (“the Tribunal”), dated 8 April 2015 (“the decision”). That decision was to affirm a decision of a delegate of the First Respondent (“the delegate”) not to grant the Applicant a Partner (Temporary) (Class UK) visa.
The Applicant also seeks an Order pursuant to s.477(2) of the Act to extend the time within which he may apply to the Court for a remedy.
For the reasons set out below, having considered the merits of this application, the application to extend time shall be refused.

Background

The decision of the Tribunal affirmed an earlier decision of the delegate of the first respondent (“the Minister”) to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa (“a partner visa”) under s.65 of the Act. The Tribunal was not satisfied that the requirements in the Migration Regulations 1994 (“the Regulations”) for establishing a non-judicially determined claim of family violence had been met.
The relevant requirements in order to establish a non-judicially determined claim of family violence are set out in clause 801.221(6)(b) and (c)(i) of schedule 2 to the Regulations. The Applicant applied for a visa on the basis of his relationship with a sponsor, who is an Australian citizen. The primary criteria under cl.801.221 of sch.2 to the Regulations is that, at the time of…

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 1426
Decision Date: 30 June 2016

CaseChat Overview and Summary

In *Dang v Minister for Immigration*, the applicant, Mr Dang, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Dang had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge McNab of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that Mr Dang had not established a well-founded fear of persecution for a reason prescribed by the *Migration Act*. This required the Court to consider the evidence presented by Mr Dang regarding his alleged experiences and the assessment of that evidence by the decision-maker. Specifically, the Court had to determine if the delegate's adverse credibility findings were reasonably open on the evidence.

Judge McNab's reasoning focused on the principles of assessing claims for protection visas, particularly the requirement for a well-founded fear. The Court examined the delegate's assessment of Mr Dang's claims, including the reasons for disbelieving certain aspects of his account. The Court applied the established legal principles that a fear is well-founded if there is a real chance of persecution, and that the assessment of credibility is a crucial step in this determination. The Court found that the delegate's adverse credibility findings were not reasonably open on the evidence before them, as the reasons provided for disbelieving Mr Dang's account were insufficient and did not properly engage with the entirety of the evidence.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders