DED16 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

DED16 v Minister for Home Affairs [2019] FCAFC 18

Appeal from:

DED16 v Minister for Immigration & Anor [2018] FCCA 3074

File number:

VID 1152 of 2018

Judges:

BROMBERG, KERR AND CHARLESWORTH JJ

Date of judgment:

7 February 2019

Catchwords:

MIGRATION – Appeal from judgment of Federal Circuit Court of Australia on judicial review of a decision of the Administrative Appeals Tribunal – Tribunal affirming a decision to refuse to grant a protection visa to a Nepalese citizen – Tribunal finding the visa applicant had not taken all possible steps to avail himself of a right to enter and reside in India within the meaning of s 36(3) of the Migration Act 1958 (Cth) – Tribunal having regard to evidence of the existence of an administrative arrangement published on an Indian government website – whether in all cases s 36(3) requires the decision-maker to have regard to the source of a right of entry and residence given by, or arising out of, an administrative arrangement – no jurisdictional error detected by primary judge – no appealable error in judgment appealed from

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

DED16 v Minister for Immigration & Anor [2018] FCCA 3074

Minister for Immigration and Border Protection v SZUSU (2016) 237 FCR 305

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35

MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384

SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77

V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408

Date of hearing:

7 February 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Appellant:

Mr D Yarrow with Mr M Peckham

Solicitor for the Appellant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Ms C Symons

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a Submitting Notice

ORDERS

VID 1152 of 2018

BETWEEN:

DED16

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:	BROMBERG, KERR AND CHARLESWORTH JJ
DATE OF ORDER:	7 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1. By his amended notice of appeal, the appellant appeals from a judgment of the Federal Circuit Court of Australia made on 24 August 2018 and published as DED16 v Minister for Immigration & Anor [2018] FCCA 3074. The primary judge dismissed the appellant’s application seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal).  The Tribunal had affirmed a decision of a delegate of the Minister for Home Affairs (Minister) to refuse to grant to the appellant a Protection (Class XA) visa (visa).

2. The criteria for a protection visa in…