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DOE18 v Minister for Immigration and Multicultural Affairs

DOE18 v Minister for Immigration and Multicultural Affairs

Case [2025] FCA 299 2 April 2025

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FEDERAL COURT OF AUSTRALIA
DOE18 v Minister for Immigration and Multicultural Affairs [2025] FCA 299

Appeal from: DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208

File number(s): NSD 1290 of 2020

Judgment of: SARAH C DERRINGTON J

Date of judgment: 2 April 2025

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissal of an application for judicial review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise (subclass 790) visa – where appellant unrepresented before primary judge and unsuccessfully raised two grounds of review – where appellant now represented and seeks leave to raise seven new grounds of appeal – whether leave to advance new grounds should be granted – whether jurisdictional error shown – where proposed grounds lack merit – leave refused; appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 5(1), 5H, 5J, 36, 473DD

Cases cited:
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344

DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38

DOE18 v Minister for Home Affairs [2018] FCCA 3317

DOE18 v Minister for Home Affairs [2019] FCA 1596

DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 36

Date of hearing: 26 March 2025

Counsel for the Appellant: Ms F McNeil

Solicitor for the Appellant: Alkafaji Lawyers

Counsel for the First Respondent: Mr T Reilly

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1290 of 2020

BETWEEN:
DOE18

Appellant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

2 APRIL 2025

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SARAH C DERRINGTON J:

This is an appeal from a decision of a judge of the then Federal Circuit Court of Australia (FCC) (now the Federal Circuit and Family Court of Australia (Div 2)) (the primary judge) dismissing…

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.

Continue reading DOE18 v Minister for Immigration and Multicultural Affairs

Details

AGLC: DOE18 v Minister for Immigration and Multicultural Affairs [2025] FCA 299
Case: [2025] FCA 299
Decision Date: 2 April 2025

CaseChat Overview and Summary

In the matter of DOE18 v Minister for Immigration and Multicultural Affairs, the Federal Court of Australia was called upon to consider an appeal from a decision of the Federal Circuit Court of Australia. The appellant, unrepresented in the lower court, sought judicial review of a decision made by the Immigration Assessment Authority, which upheld the Minister’s delegate's refusal to grant the appellant a Safe Haven Enterprise (subclass 790) visa. The Federal Circuit Court dismissed the application for judicial review, and now, represented by legal counsel, the appellant seeks leave to advance seven new grounds of appeal.

The primary legal issues for the Federal Court were whether leave should be granted to advance the new grounds of appeal, and if a jurisdictional error was demonstrated in the decision of the Immigration Assessment Authority. The court also needed to determine whether the proposed grounds of appeal had merit. The appellant contended that the lower court had failed to properly consider certain evidence and had made errors in the application of the law.

The Federal Court held that the proposed grounds of appeal were not meritorious and did not demonstrate a jurisdictional error. The court found that the Immigration Assessment Authority had appropriately considered the evidence and applied the law correctly. The appellant's claims were speculative and did not present a sufficient basis for the court to grant leave to advance new grounds of appeal. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

DOE18 v Minister for Immigration and Multicultural Affairs [2025] FCA 299

Cases Citing This Decision

No citing cases yet.

Cases Cited

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3
Citation 1 (Para 10)

…, 598-9 at [46]-[48], and have been applied more recently in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344, 351-2 at [23]-[24]. The appellant contended that five matters demonstrate that it is “expedient in the interests of justice” (using the…
DFO19 v MICMSMA [2023] FCAFC 38
Citation 2 (Para 18)

…uthority to test the prospect of involuntary return, citing DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38 at [53]-[55]. In DFO19 , the Full Court was similarly concerned with the prospect of returning irregular maritime arrivals to Iran, but in that case,…
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
Citation 3 (Para 7)

…the Authority to comply with the two-step requirement identified by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. However, his Honour found (PJ[42]) that on a fair reading of the Authority’s Reasons, it had first considered the criteria under s 473DD(b) of…
DOE18 v Minister for Home Affairs [2019] FCA 1596
Citation 4 (Para 3)

…and the matter was remitted to the Authority, differently constituted, for reconsideration according to law ( DOE18 v Minister for Home Affairs [2019] FCA 1596).…
DOE18 v Minister for Home Affairs [2018] FCCA 3317
Citation 5 (Para 3)

…dicial review of the Authority’s decision in the FCC, where his application was dismissed on 15 November 2018 ( DOE18 v Minister for Home Affairs [2018] FCCA 3317). An appeal to this Court was allowed and, on 30 September 2019, the Authority’s decision was quashed and the matter was remitted to the Authority, diffe…
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Citation 6 (Para 7)

…n, “though in practice this is rarely carried out”. In accordance with the principles in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [78], [130]-[131], the Authority’s conclusion was therefore at least open on the evidence, if not entirely consistent with it, and certainly was…
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Citation 7 (Para 12)

…lanation and an absence of prejudice is insufficient to allow new grounds to be raised on appeal. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, which decision was relied on by the Minister, Lander J said: [21] Parliament has given the Federal [Circuit] Court jurisdiction in relation to appli…
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Citation 8 (Para 10)

…leave to raise new grounds of appeal. They were stated by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588, 598-9 at [46]-[48], and have been applied more recently in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicult…
Coulton v Holcombe [1986] HCA 33
Citation 9 (Para 12)

…t which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. [23] In Coulton v Holcombe (1986) 162 CLR 1, the majority said at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settle…
Metwally v University of Wollongong [1985] HCA 28
Citation 10 (Para 12)

…is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all p…
O'Brien v Komesaroff [1982] HCA 33
Citation 11 (Para 10)

…at five matters demonstrate that it is “expedient in the interests of justice” (using the touchstone applied by Mason J in O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319, cited by the Full Court in VUAX at [46]) that leave be granted.…
[2020] FCCA 3208 [2020] FCCA 3208
Citation 12 (Para 1)

…ant the appellant a Safe Haven Enterprise Visa ( SHEV ) – DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208 ( PJ ). The decision of the primary judge was delivered on 27 November 2020. The appellant lodged his initial notice of appeal on 3 December 2020. It i…

Legislation Cited

Migration Act 1958 (Cth) 36, 473DD, 5(1), 5H, 5J
6 mentions (from Para 7)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 12)
Federal Court Rules 2011 (Cth)
1 mention

Appeal from:	DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208
File number(s):	NSD 1290 of 2020
Judgment of:	SARAH C DERRINGTON J
Date of judgment:	2 April 2025
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia dismissal of an application for judicial review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise (subclass 790) visa – where appellant unrepresented before primary judge and unsuccessfully raised two grounds of review – where appellant now represented and seeks leave to raise seven new grounds of appeal – whether leave to advance new grounds should be granted – whether jurisdictional error shown – where proposed grounds lack merit – leave refused; appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5(1), 5H, 5J, 36, 473DD
Cases cited:	AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38 DOE18 v Minister for Home Affairs [2018] FCCA 3317 DOE18 v Minister for Home Affairs [2019] FCA 1596 DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	36
Date of hearing:	26 March 2025
Counsel for the Appellant:	Ms F McNeil
Solicitor for the Appellant:	Alkafaji Lawyers
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	Second Respondent filed a submitting notice, save as to costs

ORDER MADE BY:	SARAH C DERRINGTON J
DATE OF ORDER:	2 APRIL 2025