DAX18 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

DAX18 v Minister for Home Affairs [2019] FCA 653

Appeal from:

DAX18 v Minister for Home Affairs [2018] FCCA 3230

File number:

NSD 2214 of 2018

Judge:

JAGOT J

Date of judgment:

13 May 2019

Catchwords:

MIGRATION – appeal from the Federal Circuit Court of Australia dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority– whether the Authority failed to consider a claim potentially determinative of the application for the protection visa –appeal allowed.  

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

DAX 18 v Minister for Home Affairs & Anor [2018] FCCA 3230

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Date of hearing:

8 May 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Appellant:

Indraveer Chaterjee

Solicitor for the Appellant:

D’Ambra Murphy Lawyers

Counsel for the First Respondent:

Jonathan Kay Hoyle

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

NSD 2214 of 2018

BETWEEN:

DAX18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	13 MAY 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders (2) and (3) made by the Federal Circuit Court of Australia on 8 November 2018 be set aside and in lieu thereof order that:

(a)The decision of the Authority dated 11 May 2018 affirming the decision not to grant the appellant a protection visa be set aside.

(b)The matter be remitted to the Authority for determination in accordance with law.

(c)The first respondent pay the applicant’s costs as agreed or taxed.

3.The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. These reasons for judgment explain why I have concluded that the appellant’s appeal against the order of the Federal Circuit Court dismissing the amended application for judicial review of a decision of the Immigration Assessment Authority not to grant the appellant a protection visa should be allowed. 

2. The relevant facts are these.  The appellant arrived at Christmas Island on 10 December 2012 as a minor.  He lodged an application for a Safe Haven Enterprise Visa on 28 October 2016.  A statement accompanying that application from the appellant dated 30 September 2016 said that the appellant was a Hazara Shia born in Baba Jaghori, Ghazni Province, Afghanistan.  He feared harm in…