DDM17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DDM17 v Minister for Home Affairs [2019] FCA 1510

Appeal from: DDM17 v Minister for Immigration & Anor [2018] FCCA 3542
File number: WAD 613 of 2018
Judge: REEVES J
Date of judgment: 13 September 2019
Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court – where the primary judge dismissed an application for judicial review of a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa – whether the Federal Circuit Court erred in failing to provide adequate reasons for its decision and to consider fundamental aspects of the appellant’s claims – whether the Federal Circuit Court erred in failing to find the Immigration Assessment Authority acted unreasonably in failing to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) to seek further information – appeal dismissed
Legislation: Migration Act 1958 (Cth)

Cases cited:

 BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DDM17 v Minister for Immigration & Anor [2018] FCCA 3542
DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16
Date of hearing: 22 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 63
Counsel for the Appellant: Mr DJ McDonald-Norman
Solicitor for the Appellant: Westside Legal
Counsel for the First Respondent: Ms A Douglas-Baker
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

WAD 613 of 2018
BETWEEN:

DDM17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

13 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The notice of appeal filed 20 December 2018 is dismissed.

2.The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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


REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

  1. This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 3 December 2018: see DDM17 v Minister for Immigration & Anor [2018] FCCA 3542 (DDM17). The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) which affirmed…

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Details
Case
[2019] FCA 1510
Decision Date

CaseChat Overview and Summary

The appellant, DDM17, appealed against a decision of the Federal Circuit Court of Australia, which dismissed his application for judicial review of a decision by a delegate of the Minister for Home Affairs not to grant him a Safe Haven Enterprise (Subclass 790) visa. The appellant contended that the Federal Circuit Court had erred by failing to provide adequate reasons for its decision, by not considering fundamental aspects of his claims, and by not finding that the Immigration Assessment Authority acted unreasonably in not exercising its discretion to seek further information from him under s 473DC of the Migration Act 1958 (Cth). The central legal issues in this case were whether the Federal Circuit Court adequately considered the appellant's claims and whether it was correct in its conclusion that the Immigration Assessment Authority did not act unreasonably. The court considered whether the Federal Circuit Court provided sufficient reasons for its decision and whether it correctly evaluated the appellant's claims and the Authority's actions. The High Court found that the Federal Circuit Court did not err in its reasoning and adequately considered the appellant's claims and the Authority's discretion. Therefore, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The notice of appeal filed 20 December 2018 is dismissed.

2. The appellant is to pay the first respondent’s costs to be taxed failing 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

Finally, relying upon its findings above and its conclusion that he would not be at risk in connection with his questioning or detention upon his return to Sri Lanka, the Authority also concluded that the appellant did not face a real risk of significant harm under the complementary protection provisions of s 36(2)(aa) of the Act.THE PRIMARY JUDGMENT The appellant advanced the following two particularised grounds of review before the Federal Circuit Court of Australia: 1A. The [Authority] failed to get new information from the [appellant] pursuant to s 473DC of the Migration Act.Particularsa. On or about 30 March 2016, the [appellant] lodged an application for a [SHEV] (the SHEV Application) with the Department ….b. On Wednesday 20 July 2016, the [appellant] was interviewed by the Department in relation to his SHEV Application (SHEV Interview).c. The SHEV Interview was translated from the Tamil language to English by an interpreter with the TIS identity number 5199 (Interpreter).d. The SHEV Interview contained a claim by the [appellant] that he was detailed [sic – detained] in 2010 for his ‘sexual orientation problem’ or ‘sexual preference’.e. Later in the SHEV Interview the Interpreter attempted to refine his earlier translation concerning the [appellant’s] ‘sexual orientation problem’ and translated that the [appellant] said he was not transgender or gay.f. The delegate of the Department took no steps to clarify the nature of the [appellant’s] claims.g. The [Authority] did not consider whether to exercise its discretion to get new information from the [appellant] as to whether he was making a claim on the basis of his sexual orientation.h. The [Authority] knew, or should be taken to have known, that the [appellant] was likely to have information regarding his sexual orientation.i. In declining to consider whether it should have exercised its discretion to get information from the [appellant] in relation to his claim based on his sexual orientation the Authority acted unreasonably.j. The [Authority’s] error or errors in this regard constituted jurisdictional error.1B. Further and in the alternative, the [Authority] failed to consider a claim by the [appellant] made ‘squarely’ before it.Particularsa. The [appellant] refers to and repeats particulars a - f above.b. The [Authority] did not consider whether the [appellant] had made a claim for protection based on his sexual orientation or preference.c. The [Authority] knew, or should be taken to have known, that the [appellant] had made a claim regarding his sexual orientation or preference the nature of which could be misunderstood or misconstrued.d. The [Authority] failed to consider a claim squarely made.e. The [Authority’s] error or errors in this regard constituted jurisdictional error.(Italics in original; emphasis added) In his submissions on this appeal, the appellant’s counsel indicated that ground of review 1A above equated to ground of appeal 1 in the present appeal. It is also apparent from its terms that ground of review 1B above corresponds to, the now not pressed, ground of appeal 2. Finally, it is also worth noting the overlap that exists between the remaining two grounds of appeal in this matter. That overlap arises because ground of appeal 3 concerns the primary judge’s alleged failure to provide adequate reasons with respect to the matters addressed by ground of appeal 1.

Ratio Decidendi

Legal Principle Established

The appellant advanced the following two particularised grounds of review before the Federal Circuit Court of Australia: 1A. The [Authority] failed to get new information from the [appellant] pursuant to s 473DC of the Migration Act.Particularsa. On or about 30 March 2016, the [appellant] lodged an application for a [SHEV] (the SHEV Application) with the Department ….b. On Wednesday 20 July 2016, the [appellant] was interviewed by the Department in relation to his SHEV Application (SHEV Interview).c. The SHEV Interview was translated from the Tamil language to English by an interpreter with the TIS identity number 5199 (Interpreter).d. The SHEV Interview contained a claim by the [appellant] that he was detailed [sic – detained] in 2010 for his ‘sexual orientation problem’ or ‘sexual preference’.e. Later in the SHEV Interview the Interpreter attempted to refine his earlier translation concerning the [appellant’s] ‘sexual orientation problem’ and translated that the [appellant] said he was not transgender or gay.f. The delegate of the Department took no steps to clarify the nature of the [appellant’s] claims.g. The [Authority] did not consider whether to exercise its discretion to get new information from the [appellant] as to whether he was making a claim on the basis of his sexual orientation.h. The [Authority] knew, or should be taken to have known, that the [appellant] was likely to have information regarding his sexual orientation.i. In declining to consider whether it should have exercised its discretion to get information from the [appellant] in relation to his claim based on his sexual orientation the Authority acted unreasonably.j. The [Authority’s] error or errors in this regard constituted jurisdictional error.1B. Further and in the alternative, the [Authority] failed to consider a claim by the [appellant] made ‘squarely’ before it.Particularsa. The [appellant] refers to and repeats particulars a - f above.b. The [Authority] did not consider whether the [appellant] had made a claim for protection based on his sexual orientation or preference.c. The [Authority] knew, or should be taken to have known, that the [appellant] had made a claim regarding his sexual orientation or preference the nature of which could be misunderstood or misconstrued.d. The [Authority] failed to consider a claim squarely made.e. The [Authority’s] error or errors in this regard constituted jurisdictional error.(Italics in original; emphasis added) In his submissions on this appeal, the appellant’s counsel indicated that ground of review 1A above equated to ground of appeal 1 in the present appeal. It is also apparent from its terms that ground of review 1B above corresponds to, the now not pressed, ground of appeal 2. Finally, it is also worth noting the overlap that exists between the remaining two grounds of appeal in this matter. That overlap arises because ground of appeal 3 concerns the primary judge’s alleged failure to provide adequate reasons with respect to the matters addressed by ground of appeal 1.