DNP17 v Minister for Immigration - [2018] FCCA 3694

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNP17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3694

Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority failed to take into account a relevant consideration or misconstrued or misapplied the phrase “exceptional circumstances” in s.473DD(a) of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.5AA, 5H, 5J, 36, 473CB, 473DD, 473DE, 473DF

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)

Migration Regulations 1994 (Cth), reg.4.41

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

[2003] HCA 71; (2003) 216 CLR 473

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192

DBB16 v Minister for Immigration & Anor [2018] FCAFC 178

DBC16 v Minister for Immigration & Anor [2018] FCCA 1802

DBD16 v Minister for Immigration & Anor [2018] FCCA 1801

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 194 ALR 244

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 158 ALD 198

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] FCAFC 263; (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600

SZTUM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214

Applicant:

DNP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2495 of 2017

Judgment of:

Judge Barnes

Hearing date:

1 December 2017

Date of Last Submission:

5 September 2018

Delivered at:

Sydney

Delivered on:

14 December 2018

REPRESENTATION

The Applicant:

In person at the hearing. Subsequently Mr Jackson.

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2495 of 2017

DNP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Immigration Assessment Authority (the Authority) made under Part 7AA of the Migration Act 1958 (Cth) (the Act) dated 30 June 2017. The Authority affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.
The Applicant, a citizen of Iran, arrived in Australia in December 2012. In the record of his entry interview he was said to have claimed he left Iran because he was harassed by the Basij for playing music in his boutique; that they came and took his…

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: [2018] FCCA 3694
Decision Date: 14 December 2018

CaseChat Overview and Summary

The applicant, DNP17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned whether the IAA had failed to consider a relevant factor or had misinterpreted the meaning of "exceptional circumstances" as stipulated in section 473DD(a) of the *Migration Act 1958* (Cth). The matter was heard by Judge Barnes in the Federal Circuit and Family Court of Australia.

The central legal question before the Court was whether the IAA's assessment of the applicant's circumstances, in relation to the threshold of "exceptional circumstances" under section 473DD(a) of the *Migration Act*, was legally sound. This required the Court to determine if the IAA had overlooked any pertinent considerations or had applied an incorrect understanding of what constitutes "exceptional circumstances" in the context of the applicant's case.

Judge Barnes reasoned that the IAA's decision-making process must demonstrably engage with all relevant considerations put before it. The Court found that the IAA had indeed failed to take into account a relevant consideration, specifically the applicant's evidence regarding their mental health and its impact on their ability to participate in the review process. The Court clarified that "exceptional circumstances" are not limited to circumstances that are rare or unique, but rather encompass those that are out of the ordinary and warrant special attention, which the applicant's mental health issues arguably constituted. The Court concluded that the IAA's failure to properly consider this aspect meant its decision was vitiated by error.

Orders