DCO16 v Minister for Immigration - [2017] FCCA 3113

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCO16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3113

Catchwords:
MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider whether the applicant’s fear amounted to significant harm – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether the Tribunal erred in its failure to disclose a certificate purportedly issued under s.438 of the Migration Act 1958 (Cth) – whether the Tribunal misunderstood the law in its consideration of the applicant’s claims – jurisdictional error – writs issued.

PRACTICE & PROCEDURE – Leave sought to re-open case – tender and rely on partial transcript of Tribunal hearing – leave to re-open refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438

Cases cited:

Applicant:

DCO16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2868 of 2016

Judgment of:

Judge Smith

Hearing date:

23 November 2017

Date of Last Submission:

1 December 2017

Delivered at:

Sydney

Delivered on:

15 December 2017

REPRESENTATION

The applicant appeared in person by his litigation guardian.

Counsel for the First Respondent:

Ms N Laing

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The first respondent’s application to re-open his case is refused.
A writ of certiorari issue quashing the decision of the second respondent dated 29 September 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 18 March 2015 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2868 of 2016

DCO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant was born on 15 May 2013 in Griffith, New South Wales to parents of Indian…

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 3113
Decision Date: 15 December 2017

CaseChat Overview and Summary

The applicant, DCO16, sought judicial review of a decision made by the Administrative Appeals Tribunal concerning their protection visa application. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the Tribunal had adequately considered the applicant's claims and complied with relevant provisions of the *Migration Act 1958* (Cth).

The legal issues before the court included whether the Tribunal failed to consider whether the applicant's fear amounted to significant harm, whether it contravened section 424A of the *Migration Act 1958* (Cth), and whether it erred by failing to disclose a certificate purportedly issued under section 438 of the Act. Additionally, the court considered whether the Tribunal misunderstood the law in its assessment of the applicant's claims, leading to jurisdictional error.

The court, applying established principles regarding jurisdictional error, noted that allegations of illogical or irrational reasoning must be assessed within the framework of whether such errors are material to the ultimate conclusion. Drawing on authorities such as *Minister for Immigration & Border Protection v SZUXN* and *Muggeridge v Minister for Immigration & Border Protection*, the court emphasised that even irrational findings do not necessarily constitute jurisdictional error if they are immaterial to the decision. However, in this instance, the court found that the identified error was material and therefore infected the Tribunal's decision with jurisdictional error.

Consequently, the court ordered that the Tribunal's decision be quashed and the matter remitted to the Tribunal for reconsideration according to law. Leave to re-open the case to tender a partial transcript of the Tribunal hearing was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although not raised by the Minister, it is possible to argue that there is a line of authority in the Federal Court that requires a different outcome. The authorities in question deal with the impact of illogical or irrational findings made in the course of decision-making. They were summarised by Wigney J in Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 at [55]; [2016] FCA 516:… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].(Emphasis added) His Honour’s remarks were endorsed by the Full Court in Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200 at [35] (Charlesworth J, Flick and Perry JJ agreeing). However, both the emphasised portion of that paragraph and the authorities to which Wigney J refers make plain that, even in the context of illogicality and irrationality, the question of whether there is jurisdictional error turns on an analysis of the reasons for the impugned decision. On that basis, in light of the reasons for the decision here, those authorities may be distinguished. The question remains, as I have stated, whether the error was material to the decision. In my view the error here was material and so infected the decision with jurisdictional error. There is no basis for refusing to grant relief. The decision must be quashed and the matter remitted to the Tribunal for consideration according to law.

Ratio Decidendi

Legal Principle Established

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