FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3187 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant claims that the IAA failed to provide him with information from a UK Home Office Report which formed part of the reason for affirming the decision of the Delegate and that it did not consider getting documents and information from him and from a former colleague of his – HELD: the IAA had in fact provided in correspondence reference to the information complained of by the applicant, but in any event the IAA was under no obligation to provide the applicant with that information as it was exempted under s.473DE(3) of the Migration Act 1958 (Cth) due to not being about the applicant or another person – the IAA did not act legally unreasonably in failing to get documents or information from the applicant or his former colleague, nor did it fail to consider getting such information – none of the Grounds asserted by the Applicant established that the decision of the Tribunal was affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5AAA, 36, 46A, 424A, 473CA, 473DC, 473DE. |
| Applicant: | DDS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2211 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 22 November 2019 |
| Date of Last Submission: | 20 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Brennan of Counsel |
| Solicitors for the Applicant: | Piper Alderman |
| Counsel for the First Respondent: | Mr N. Swan of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to amend the Amended Application filed in this Court on 23 July 2018 by adding “Additional Ground 2” in the terms as filed in this Court on 11 December 2019.
The Amended Application filed in this Court on 23 July 2018 is dismissed.
| FEDERAL CIRCUIT… |
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- Case
- [2020] FCCA 3187
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the IAA had a legal obligation to provide the applicant with the UK Home Office Report, and whether the IAA acted unreasonably in failing to obtain further information from the applicant or his former colleague. The applicant argued that these failures constituted jurisdictional error.
Dowdy J held that the IAA had, in fact, referenced the information in question in its correspondence with the applicant. Furthermore, the Court found that the IAA was under no obligation to provide the applicant with the UK Home Office Report, as it was exempt from disclosure under s 473DE(3) of the Migration Act 1958 (Cth) because it did not pertain to the applicant or another specified person. The Court also determined that the IAA did not act unreasonably in failing to seek documents or information from the applicant or his former colleague, nor did it fail to consider doing so.
Consequently, the Court found that none of the grounds asserted by the applicant established that the IAA's decision was affected by jurisdictional error. The application for judicial review was therefore dismissed.
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
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Ratio Decidendi
Legal Principle Established
On 13 January 2016 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for a Protection visa on 19 February 2016 with the assistance of his migration agent (migration agent). The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:a)who entered Australia after 13 August 2012 but before 1 January 2014;b)who was not taken to a regional processing country;c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); andd)who made, as he did, a valid application for a Protection visa. Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case. I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ. At the hearing in this Court, when Mr Brennan of Counsel appeared for the Applicant and Mr Swan of Counsel appeared for the Minister, it was common ground that the Applicant’s claims to protection had been correctly summarised by the Delegate in his Decision Record, as follows:The applicant claims to fear that he will be seriously harmed by the Taliban and other Sunni extremist groups for reasons of his:·Hazara ethnicity; ·Shia faith;·imputed political opinion in opposition to the Taliban / in support of the Afghan Government and International Security Assistance Force forces (including as a suspected foreign spy); and ·membership of a particular social group as a returnee from a Western country. In a Statutory Declaration sworn by the Applicant on 15 February 2016 (Statutory Declaration), which formed part of his Protection visa application, he elaborated upon his claims as follows: a)he fled Afghanistan due to threats of persecution being made by the Taliban for his involvement with Afghan Eyes;b)during his employment with Afghan Eyes, both he and his colleague were en route to Parwan province when their taxi was stopped by the Taliban. They were asked to declare if they were working with the government or a non-government organisation (NGO). As nobody owned up, they were both searched and his colleague’s identification card and phone were found. His colleague was taken away and his badly mutilated body was found a few days later. The Applicant was not taken at this time because they could not find anything in the search to prove that he belonged to a government group or an NGO;c)as soon as he arrived in Parwan he made arrangements to return to Kabul as he was concerned the Taliban would come looking for him. He informed the Vice-President of Afghan Eyes, Mr Ahmad Mahsood, what had happened with his colleague but he was assured that he would be alright, since a lot of the employees in Kabul were fine. I note that this Mr Mahsood is the same person as Ahmad Massoud referred to below;d)a week later he received a phone call from an individual identifying himself as ‘Mulla’ who threatened that he knew about the Applicant’s involvement with Afghan Eyes because the Taliban had found a picture of him with other employees on the deceased colleague’s phone, which showed their employment identifications hanging around their necks. Mulla also declared knowledge of the Applicant’s details, particularly of where he lived;e)after his return to Kabul, three masked men stormed into his home looking for him. He fled his home and in retaliation they beat his mother and told her that they were going to kill him. He fled Afghanistan with the help of his relatives soon afterwards;f)he fears that if he were to return to Afghanistan he would be seriously harmed by the Taliban because he is “a targeted man and the Taliban will not hesitate to kill him if he is found by them” and he experienced direct threats to his life which led to his mother being badly beaten by the Taliban;g)he “could not move to any other parts of Afghanistan not only because the Taliban are everywhere but [he] did not have anyone to help [him]”;h)he does “not think the authorities in Afghanistan will protect [him] because the Taliban will find him anywhere”; i)he is unable to relocate within Afghanistan and “it is not safe for [him] to travel or live in any other parts of Afghanistan because the Taliban have great influence and power in the country and are in control of many of the roads in this area”; andj)he will be deprived of his capacity to subsist in Afghanistan due to the threats to his life made by the Taliban. (emphasis added)