DKF17 v Minister for Immigration - [2019] FCCA 723

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKF17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 723

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority applied the correct test under s.473DD of the Migration Act 1958 (Cth) or whether the Authority failed to complete its task of review considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 36, 473BB, 473DA, 473DC, 473DD, 473EA, 473GA, 473GB

Cases cited:

Allesch v Maunz (2000) 203 CLR 172

AQU17 v Minister for Immigration [2018] FCAFC 111

AUH17 v Minister for Immigration [2018] FCA 388

BCQ16 v Minister for Immigration [2018] FCA 365

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CHF16 v Minister for Immigration [2017] FCAFC 192

CIH16 v Minister for Immigration [2018] FCA 1317

CSR16 v Minister Immigration [2018] FCA 474

EAA16 v Minister for Immigration & Anor [2018] FCCA 2624

FKQ17 & Ors v Minister for Immigration & Anor [2018] FCCA 1281

Minister for Immigration v BBS16 [2017] FCAFC 176

Minister for Immigration v CLV16 [2018] FCAFC 80

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v CRY16 [2017] FCAFC 210

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

R v Kelly [1999] UKHL 4; [2000] QB 198

Applicant:

DKF17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2407 of 2017

Judgment of:

Judge Driver

Hearing date:

22 March 2019

Date of last submissions:

12 April 2019

Delivered at:

Sydney

Delivered on:

7 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

ABU Legal

Solicitors for the Respondents:

Mr J Lambe of HWL Ebsworth

ORDERS

The further amended application filed on 29 March 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2407 of 2017

DKF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 July 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 15 March 2019.
The applicant is a male citizen of Bangladesh. The applicant's initial claims were set out in his temporary protection visa application and supporting statement received by the Minister’s Department on 21 April 2016.[1] The applicant claimed that his father was a member of the Bangladesh National Party (BNP), and that from a young age he used to witness meetings in his family's home between his father, grandfather and uncle, and other important political leaders.
[1] Court Book (CB) 7
The applicant claimed that he wanted…

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 723
Decision Date: 7 June 2019

CaseChat Overview and Summary

The applicant, DKF17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm in Bangladesh, but the IAA had not accepted their claims. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA applied the correct test for review under section 473DD of the *Migration Act 1958* (Cth) and whether the IAA had failed to complete its task of review. The applicant contended that these failures constituted jurisdictional error.

Judge Driver found that the IAA had applied the correct test under section 473DD of the *Migration Act*. The Court reasoned that the IAA's task was to review the original decision-maker's assessment, and in doing so, it was required to consider whether the applicant had established a real chance of suffering harm. The Court concluded that the IAA had undertaken this task and had not failed to complete its review. Accordingly, there was no jurisdictional error.

The application for judicial review was dismissed.

Orders