DGM17 v Minister for Immigration - [2017] FCCA 2896

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGM17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2896

Catchwords:
MIGRATION – Application for Protection (Class XA) visa.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a), 438(1)(a), 375A

Cases cited:

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
BEG15 v Minister for Immigration & Anor [2016] FCCA 2778
CJV15 v Minister for Immigration & Anor [2016] FCCA 1447
Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Singh v Minister for Immigration and Border Protection (2016) 244 FCR 305
SZNZK v Minister for Immigration & Citizenship [2010] FCA 651
SZRRY v Minister for Immigration & Anor [2013] FMCA 189

First Applicant:

DGM17

Second Applicant:

DGN17

Third Applicant:

DGM17 AS LITIGATION GUARDIAN FOR DGO17

Fourth Applicant:

DGM17 AS LITIGATION GUARDIAN FOR DGP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 679 of 2017

Judgment of:

Judge Jarrett

Hearing date:

6 November 2017

Date of Last Submission:

6 November 2017

Delivered at:

Brisbane

Delivered on:

24 November 2017

REPRESENTATION

The Applicants appeared in person

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The application filed 20 July, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 679 of 2017

DGM17

First Applicant

DGN17

Second Applicant

DGM17 as litigation guardian for DGP17

Third Applicant

DGM17 as litigation guardian for DGP17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first applicant is a citizen of Fiji who came to Australia on 12 December, 2014 as the holder of a Tourist visa. On 4 March, 2015 the applicant filed an application for a Protection (Class XA) visa. The second, third and fourth applicants also sought protection visas on the basis that they were part of the first applicant’s family unit.
By this application the applicants seek judicial review of a decision by the Administrative Appeals Tribunal given 26 June, 2017 which affirmed a decision of a delegate of the first respondent not to grant them the visas. The ground of review specified in the application for review filed by the applicants is very general. I made orders on…

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: [2017] FCCA 2896
Decision Date: 24 November 2017

CaseChat Overview and Summary

The applicant, DGM17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant information and had made findings that were not supported by evidence, thereby vitiating the decision-making process.

Judge Jarrett found that the delegate had failed to adequately consider crucial evidence relating to the applicant's fear of persecution, particularly concerning the credibility of the applicant's account and the assessment of the risk of harm upon return to their country of origin. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant material before them and that a failure to do so can constitute jurisdictional error. The Court determined that the delegate's assessment was flawed due to an insufficient and unbalanced consideration of the evidence, leading to an unreasonable conclusion.

Consequently, Judge Jarrett quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders