DDQ17 v Minister for Immigration and Border Protection

The case of DDQ17 v Minister for Immigration and Border Protection involved an appeal against the orders of the primary judge, who dismissed the applicant's application for judicial review of the decision made by the Immigration Assessment Authority. The Authority had affirmed the decision of the delegate of the Minister for Immigration and Border Protection to refuse the applicant a subclass 790 visa. The applicant contested the decision on the grounds that the Authority had failed to consider the "what if I am wrong?" scenario due to doubts about whether the applicant had an imputed profile that could create a well-founded fear of persecution.

The legal issues before the court included whether the primary judge erred in not finding a jurisdictional error on the part of the Authority for failing to consider the "what if I am wrong?" scenario. The court had to determine whether the Authority had to consider alternative scenarios when it had already established that the applicant did not have a well-founded fear of persecution due to changed country circumstances. The court also needed to decide whether the applicant should be granted leave to rely on grounds that had not been raised before the primary judge.

The court held that the primary judge did not err in finding that the doubts relied upon were not held by the Authority. The court reasoned that once an essential and indispensable element of a claim for a well-founded fear of harm amounting to persecution had not been made out, there was no obligation on the decision-maker to consider the balance of the matters required to be satisfied upon the assumption that such a threshold had been satisfied. The Authority had made clear findings of an absence of a basis for a well-founded fear of harm, and therefore there was no need for the Authority to go further and consider alternative scenarios. The court also refused leave to the applicant to rely on grounds that had not been raised before the primary judge.

As a result, the appeal was dismissed with costs. The court ordered that leave to rely upon appeal grounds 2-8 of the applicant’s notice of appeal filed on 12 March 2018 be refused, that the appeal be dismissed, and that the applicant pay the costs of the first respondent as agreed or assessed.