DQU16 v Minister for Immigration - [2017] FCCA 1818

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQU16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1818

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Temporary Protection Visas – the Authority correctly applied s.5J of the Migration Act – the Authority made adverse findings that were open – the Authority did not take into account irrelevant considerations – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA(1A), 5J, 5H, 36, 473CB, 473DD, 476

First Applicant:

DQU16

Second Applicant:

DQW16

Third Applicant:

DQV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3375 of 2016

Judgment of:

Judge Street

Hearing date:

3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Sydney

Delivered on:

3 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr A Alkafaji

Stamford Law

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant file and serve a further amended application on or before Monday 7 August 2017 including the grounds identified in order 2.
Leave to the applicant to rely upon a new paragraph 3(d):
“The IAA decision is disproportionate by giving excessive weight to a matter of very minor importance, being the phone call, and/or by giving little weight to a very important factor, being the video clip.”
and to add a Ground 4:
“The IAA failed to properly apply the complementary protection criteria.”
The further amended application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3375 of 2016

DQU16

First Applicant

DQW16

Second Applicant

DQV16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority) under Part 7AA made on 2 November 2016, a decision of the delegate not to grant the applicants protection visas.
The second and third applicants, the mother and son, did not advance their own claims for protection but were included as members of the family unit. The claims for protection were advanced by the first applicant father and husband.
The first and second applicants entered Australia as unauthorised maritime arrivals on 23 August 2012 and the third applicant was born thereafter in the migration zone and is deemed to be an unauthorised maritime arrival under s.5AA(1A) of the Migration Act. The first applicant claimed to fear harm by reason of persecution at the hands of Iraqi religious group such as the Mahdi Army for engaging in the distribution of alcohol in his hometown.
The first applicant claimed to be a member of a particular social group comprising “liquor or alcohol businessmen” and claimed to fear harm by reason of his imputed…

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 1818
Decision Date: 3 August 2017

CaseChat Overview and Summary

The applicant, DQU16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to properly consider all the information before them, including the applicant's claims of persecution, when making the assessment of the applicant's claims.

Judge Street found that the delegate had failed to adequately assess the applicant's claims regarding past persecution and the risk of future persecution. The Court reasoned that a proper assessment required a detailed examination of the evidence presented by the applicant, and that the delegate's reasons for decision did not demonstrate that such an examination had occurred. The legal principle applied was that a failure to properly consider relevant evidence constitutes a jurisdictional error, rendering the decision invalid.

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

Orders