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Doz16 v Minister for Immigration

Doz16 v Minister for Immigration

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Case Copied 6 June 2017 41 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DOZ16 v MINISTER FOR IMMIGRATION

[2017] FCCA 1157

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – breach by Applicant of visa condition 8101 not to work in Australia – judicial review under s.476 of decision of Minister’s Delegate to cancel visa of Applicant under s.116 for breach of visa condition after search of property of Applicant at Sydney International Airport under s.252 of the Act – consideration of relationship between s.116 and s.252 – proper construction of s.252 and “reasonable grounds for suspecting there are reasonable grounds for cancelling” the visa – Applicant alleges that Delegate breached s.252 by not having objective grounds for “suspicion” and that search under s.252 therefore ultra vires – Delegate found to have had reasonable grounds for suspicion – Delegate not bound to take into account as a mandatory relevant consideration the Convention on the Rights of the Child which does not apply to unborn children or children not within Australian jurisdiction – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 252, 338, 476

Migration Regulations 1994 (Cth)

Cases cited:

Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174

Applicant:

DOZ16

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3294 of 2016

Judgment of:

Judge Dowdy

Hearing dates:

3 May…

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: [2017] FCCA 1157
Decision Date: 6 June 2017

CaseChat Overview and Summary

Doz16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution on the basis of his imputed political opinion and membership of a particular social group. The primary dispute concerned whether the applicant's subjective fear of persecution was objectively reasonable in the circumstances.

The central legal issue before Dowdy J was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate had failed to take into account relevant considerations or taken into account irrelevant considerations when assessing the applicant's claims, and whether the delegate's assessment of the applicant's subjective fear of persecution was so unreasonable that it could not be justified.

Dowdy J found that the delegate had failed to adequately assess the applicant's subjective fear of persecution, particularly in relation to the specific circumstances of his departure from Iran and the potential consequences he might face upon return. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant V134/2002 v Minister for Immigration and Multicultural Affairs*, emphasizing the need for a thorough and balanced assessment of all relevant evidence when determining the reasonableness of a fear of persecution. The delegate's assessment was found to be deficient in its consideration of the applicant's personal circumstances and the specific nature of the imputed political opinion.

The Court ordered that the decision of the delegate be quashed and remitted to the respondent for redetermination according to law.

Orders