DDT16 v Minister for Immigration - [2019] FCCA 3313

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDT16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3313

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application –application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse to grant to the applicant a Temporary Protection (Class XD) (Subclass 785) visa – applicant made a new claim which was accepted as new information under s.473DC(1) of the Migration Act 1958 (Cth) by the Immigration Assessment Authority which was based on his fear of harm in Iran arising from his embracing of Christianity while in Australia – applicant claimed that Immigration Assessment Authority committed jurisdictional error by taking on the role of arbiter of doctrine and that its decision was irrational, illogical or arbitrary – Immigration Assessment Authority did not take on the role of arbiter of doctrine in considering the claims of the applicant and its decision was not irrational, illogical or arbitrary – applicant fails to establish any jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 46A, 91K, 195A, 473CA, 473DD

Cases cited:

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855
ASY17 v Minister for Immigration & Border Protection [2019] FCA 1888
AWA15 v Minister for Immigration [2018] FCA 604
BWC16 v Minister for Home Affairs [2018] FCA 1375

Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Applicant:

DDT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2907 of 2016

Judgment of:

Judge Dowdy

Hearing date:

5 February 2019

Delivered at:

Sydney

Delivered on:

25 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr N. Dobbie

Solicitors for the Applicant:

Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the First Respondent:

Ms R. Graycar of Counsel

Solicitors for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 24 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2907 of 2016

DDT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Iran aged 37 years, having been born on 26 April 1982.
By Application filed in this Court on 24 October 2016 he seeks to quash and have re-determined in accordance with law the decision under Part 7AA of the Migration Act 1958 (Cth) (the Act) of the Second Respondent, the Immigration Assessment Authority (IAA), dated 19 September 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 11 July 2016 refusing to grant to him a Temporary Protection (Class XD) (Subclass 785) visa (Protection visa).

Background

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: [2019] FCCA 3313
Decision Date: 25 November 2019

CaseChat Overview and Summary

The applicant, DDT16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the Minister's refusal to grant a Temporary Protection (Class XD) visa. The applicant's claim for protection was based on a fear of harm in Iran arising from his conversion to Christianity while in Australia. The applicant contended that the IAA committed jurisdictional error by acting as an arbiter of religious doctrine and that its decision was irrational, illogical, or arbitrary.

The court was required to determine whether the IAA had engaged in jurisdictional error by assuming the role of a doctrinal arbiter and whether its decision was vitiated by irrationality, illogicality, or arbitrariness. The court also considered the relevant criteria for the grant of a protection visa under the *Migration Act 1958* (Cth), specifically the Refugee Criterion and the Complementary Protection Criterion.

The court found that the IAA did not act as an arbiter of religious doctrine. Instead, it considered the applicant's claims regarding his conversion and subsequent fear of harm in Iran. The court concluded that the IAA's decision was not irrational, illogical, or arbitrary, and therefore, the applicant had failed to establish any jurisdictional error. The court referenced established jurisprudence on the scope and application of Part 7AA of the Act, which governs the IAA's review function, and reiterated the criteria for protection visas as outlined in sections 36(2)(a) and 36(2)(aa) of the Act.

The application for judicial review was 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

The Applicant made his application for the Protection visa on 5 January 2016 and lodged in support a further Statutory Declaration declared on 23 December 2015 (second Statutory Declaration). 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] FCAFC 176 per Kenny, Tracey and Griffiths JJ. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....