DKW16 v Minister for Immigration - [2019] FCCA 334

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKW16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 334

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal (AAT) decision – whether the AAT made findings that were not reasonably open to it on the evidence before it – whether the AAT took into account an irrelevant consideration – whether the AAT failed to undertake its duty to make inquiries in relation to certain evidence – whether the AAT made certain findings that were irrational and unreasonable and denied the applicant a fair hearing – whether the AAT failed to assess the applicant’s claims for protection cumulatively – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 5J, 91R, 424, 424A, 425, 426, 476

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Cases cited:

Applicant:

DKW16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3147 of 2016

Judgment of:

Judge Nicholls

Hearing date:

11 September 2018

Date of Last Submission:

11 September 2018

Delivered at:

Sydney

Delivered on:

15 February 2019

REPRESENTATION

Solicitors for the Applicant:

Chaudhry Legal

Appearing for the Applicant:

Mr R Chaudhry

Solicitors for the Respondents:

HWL Ebsworth Lawyers

Appearing for the Respondents:

Ms S Given

ORDERS

The application made on 15 November 2016 and as variously amended is dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3147 of 2016

DKW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15…

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 334
Decision Date: 15 February 2019

CaseChat Overview and Summary

The applicant, DKW16, 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 visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing the applicant's eligibility for the visa. Specifically, the Court was asked to determine if the delegate's assessment of the applicant's character and the potential risk posed by their presence in Australia was lawful.

Judge Nicholls found that the delegate had failed to properly consider crucial information provided by the applicant regarding their rehabilitation and efforts to address past issues. The Court reasoned that a failure to give due weight to such mitigating factors amounted to an error of law, as it meant the delegate had not undertaken a comprehensive and balanced assessment as required by the relevant legislation. The principles of administrative law concerning the proper exercise of discretionary power and the duty to consider all relevant material were applied.

The Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders