DCU18 v Minister for Home Affairs

Link copied
Case Copied 60 min read

FEDERAL COURT OF AUSTRALIA

DCU18 v Minister for Home Affairs [2020] FCA 1817

Appeal from: DCU18 v Minister for Home Affairs [2019] FCCA 1458
File number(s): WAD 327 of 2019
Judgment of: MORTIMER J
Date of judgment: 21 December 2020
Catchwords: MIGRATION – appeal from Federal Circuit Court – where the Immigration Assessment Authority relied on discrepancies between age determination interview, entry interview and SHEV application interview – whether IAA failed to consider relevant information – irrationality – whether exercise of power legally unreasonable – appeal allowed.
Legislation: Migration Act 1958 (Cth)
Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407

AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 531

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83

BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175

DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134

DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Raibevu v Minister for Home Affairs [2020] FCAFC 35

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 113
Date of last submission/s: 19 October 2020
Date of hearing: 26 October 2020
Counsel for the Appellant: Ms M Brady
Solicitor for the Appellant: Allens
Counsel for the Respondents: Mr P Macliver
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

WAD 327 of 2019
BETWEEN:

DCU18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

MORTIMER J

DATE OF ORDER:

21 DECEMBER 2020

THE COURT ORDERS THAT:

1.The appellant has leave to rely on the draft amended notice of appeal annexed to his interlocutory application filed on 14 September 2020.

2.The appeal be allowed.

3.Order 1 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside and in lieu thereof, order that the decision of the second respondent made on 11 May 2018 be set aside and the matter be remitted to the second respondent for determination according to law.

4.Order 2 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside.

5.The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read DCU18 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] FCA 1817
Decision Date

CaseChat Overview and Summary

The appellant, a minor from Sri Lanka, brought an appeal against the decision of the Minister for Home Affairs, represented by the Minister's delegate, the second respondent, who rejected the appellant’s application for a protection visa. The appellant argued that the decision-maker failed to consider relevant information, leading to an unreasonable exercise of power. The case was heard in the Federal Circuit Court, which dismissed the appeal, and the appellant subsequently appealed to the High Court.

The central legal issue before the court was whether the decision-maker had failed to consider relevant information and acted irrationally in rejecting the appellant’s application for a protection visa. The appellant contended that the decision-maker did not adequately consider the appellant’s age and the circumstances surrounding his departure from Sri Lanka. The court had to determine whether the decision was legally unreasonable due to an oversight of material information and if the appellant's age and circumstances were properly assessed.

The court allowed the appeal, finding that the decision-maker had indeed failed to consider relevant information, which led to an unreasonable exercise of power. The court held that the decision-maker overlooked the appellant’s age and the context in which he left Sri Lanka. The appellant’s age was a critical factor that should have been weighed in determining his credibility and protection needs. The decision-maker’s failure to properly consider these elements rendered the decision legally unreasonable. Consequently, the decision was set aside, and the matter was remitted to the Minister for re-determination according to law.

The court further ordered that the appellant be granted leave to rely on a further amended notice of appeal, his own affidavit, and two affidavits from Ms Back. The Minister was directed to pay the appellant's costs of and incidental to the appeal. These orders were made to ensure the administration of justice was upheld, considering the appellant’s difficulties in securing legal representation and the importance of his claims being properly addressed.

Orders

Orders of the court

1. The appellant has leave to rely on the draft amended notice of appeal annexed to his interlocutory application filed on 14 September 2020.

2. The appeal be allowed.

3. Order 1 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside and in lieu thereof, order that the decision of the second respondent made on 11 May 2018 be set aside and the matter be remitted to the second respondent for determination according to law.

4. Order 2 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside.

5. The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Taking into account the particular and unusual circumstances of the appellant’s attempts to secure legal representation, and the wholesale failure of two sets of solicitors to provide him with the assistance he had sought, and apparently paid for, it is in the interests of the administration of justice that leave be granted to the appellant to rely on the further amended notice of appeal, his own affidavit and the two affidavits of Ms Back.THE AUTHORITY’S DECISION In understanding the appellant’s claims and how they were dealt with, it is important to recall that the appellant fled Sri Lanka in mid to late 2012, while he was still school-aged. The Authority summarised the appellant’s protection claims as follows (at [4]):•The applicant is a Tamil male who was born in Jaffna, Jaffna District in the Northern Province of Sri Lanka.•In 2011, when passing through Sri Lanka Army (SLA) checkpoint on his way to school the applicant was stopped and questioned by the SLA officers. The SLA officers would also take his bicycle and he would be forced to walk to school. On two occasions when his bicycle was taken by the SLA officers did not return it.•The harassment at the checkpoint increased and the SLA threatened to shoot the applicant if he did not tell them what they wanted to know. The applicant’s parents became worried for the applicant’s safety and it was decided that the applicant should withdraw from his studies.•The applicant then commenced working with his father at the family rice mill. While working at the family rice mill the applicant witnessed the SLA come and ask his father questions about the LTTE and saw his father beaten with a wooden stick.•One week later, the Criminal Investigation Department (CID) went to the applicant’s family home and stated they were monitoring and investigating people and questioned the applicant’s family about people in the area.•Shortly after this event, the applicant’s father told the applicant he could no longer stay in Jaffna because if he did the CID and SLA would come and take him for questioning. To avoid the Sri Lankan authorities the applicant’s father took him to Colombo. In Colombo, the applicant came to know that his father was required to sign in at the CID office in Jaffna each month and on this basis his father had to return to Jaffna. His father told him that on return to Jaffna if he was questioned about his whereabouts by the CID they may discover he was in Colombo so his father made the arrangements for him to depart Sri Lanka.•Since the applicant’s arrival in Australia, his mother has contacted him and told him that his younger brother has been questioned about his whereabouts and physically assaulted by the CID. She told him the reason the CID was looking for him was because his father was a member of the LTTE prior to his birth and because he had stopped going to school and because his father was ill and no longer active that they suspected him of having joined the LTTE.•On return to Sri Lanka he will be harmed by the Sri Lankan authorities who will perceived him as pro-LTTE and anti-Sri Lankan government because he is a young Tamil male, his former residence in the Northern Province, his familial relationship to his father who was member of the LTTE and subjected to reporting requirements and his return as a failed asylum seeker.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.