DNT17 v Minister for Immigration - [2019] FCCA 173

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNT17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 173

Catchwords:
MIGRATION – Application in a Case to reinstate – substantive application seeking review of the decision of the Immigration Assessment authority – whether there is a satisfactory explanation for non-appearance –– whether the substantive application has an arguable case – whether it is in the interests of justice to warrant reinstatement – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

NAJN v Minister for Immigration [2003] FMCA 414
SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy [1994] FCA 1035; (1994) 127 ALR 223; (1994) 36 ALD 225

Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369, (2010) 266 ALR 367; (2010) 115 ALD 248
CIC15 v Minister for Immigration and Border Protection [2018] FCA 795

Applicant:

DNT17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2498 of 2017

Judgment of:

Judge Nicholls

Hearing date:

6 September 2018

Date of Last Submission:

6 September 2018

Delivered at:

Sydney

Delivered on:

31 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr G Foster

Solicitors for the Applicant:

Sentil Solicitor & Barrister

Representative for the Respondents:

Ms C Saunders

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made to the Court on 12 June 2018 to reinstate the substantive application made on 7 August 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4750.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2498 of 2017

DNT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application in a case (“AIC”) filed on 12 June 2018 seeking reinstatement of a substantive application made to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 August 2017. The substantive application was dismissed by orders made by a Registrar of the Court pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 31 May 2018, due to the failure of the applicant to appear at a callover on that…

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 DNT17 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: [2019] FCCA 173
Decision Date: 31 January 2019

CaseChat Overview and Summary

The applicant, DNT17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the assessment of the applicant's claims of persecution in their country of origin. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had reasonably considered and assessed the applicant's claims of past persecution and well-founded fear of future persecution, particularly in light of the country information available at the time of the decision. This involved an examination of whether the delegate had adequately addressed the specific vulnerabilities and circumstances raised by the applicant in their protection visa application.

Judge Nicholls found that the delegate had failed to adequately assess the applicant's claims. The Court reasoned that the delegate's assessment was flawed because it did not sufficiently engage with the detailed evidence provided by the applicant regarding their experiences and the specific risks they faced. The principles applied focused on the obligation of decision-makers to conduct a thorough and fair assessment of all relevant evidence, including country information, when determining claims for protection visas. The Court emphasised that a failure to properly consider and weigh the applicant's evidence could lead to an unreasonable decision.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders