DIJ17 v Minister for Immigration - [2018] FCCA 2407

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIJ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2407

Catchwords:
MIGRATION – Protection visa application – review of decision of the Immigration Assessment Authority – reasonableness of relocation – whether the Authority erred in failing to consider material matters – whether the Authority erred by failing to deal with its finding on discrimination – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA

Other materials cited:
UN OCHA, Afghanistan Flash Appeal: One Million People on the Move (covering Sep-Dec 2016), September 2016

Cases cited:

AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106
CRI026 v The Republic of Nauru (2018) 92 ALJR 529
CRI028 v The Republic of Nauru (2018) 92 ALJR 568
CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14

MZANX v Minister for Immigration & Border Protection [2017] FCA 307

SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
SZVRA v Minister for Immigration & Border Protection [2017] FCA 121

Applicant:

DIJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 395 of 2017

Judgment of:

Judge Smith

Hearing date:

3 May 2018

Date of Last Submission:

14 June 2018

Delivered at:

Sydney (Perth by video link)

Delivered on:

7 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr R S Jahanke, Estrin Saul Lawyers

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue quashing the decision of the second respondent dated 20 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 28 October 2016 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 395 of 2017

DIJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 20 June 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Afghanistan who arrived in Australia on 14 August 2012. On 21 October 2015, he lodged an application for a protection visa. That application was based upon the following claims.
The applicant is a Shi’a Muslim of Syed ethnicity from Kandahar. When he was eight years old, his family left Afghanistan for Pakistan to escape the civil war and stayed in Quetta without visas or legal entitlements for approximately 20 years until attacks upon Shi’a Muslims forced them to return to Afghanistan.
In or around 2009, the applicant’s brother-in-law, Mr H, was attacked by members of the Taliban due to his employment at an Afghan Police Academy overseen by the US military. Mr H was,…

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.

Keep reading for free

Create a free CaseChat account to read DIJ17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2407
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, DIJ17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant DIJ17 a visa. The matter was heard before Judge Smith in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing DIJ17's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider the evidence provided by DIJ17 regarding their genuine and temporary intention to remain in Australia, a crucial factor in the visa assessment. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant material placed before them. The failure to do so constituted a jurisdictional error.

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

Orders