DRG16 v Minister for Immigration - [2017] FCCA 2063

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRG16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2063

Catchwords:
MIGRATION – Temporary Protection (subclass 785) visa application – review of Immigration Assessment Authority decision – denial of procedural fairness – scope of the Authority’s power to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), sub-s.10(2)(b)(ii)
Migration Act 1958 (Cth), ss.5AA, 51A, 54, 56, 57, 58, 65, 69, 360, 425, 473CA, 473CC, 474, 476, sub-div.AB in div.3 of pt.2, pt.7AA

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.3, sch.1, item 8
Migration Regulations 1994 (Cth), reg.4.43

Other materials cited:
Aronson, Groves and Weeks, Judicial Review of Administrative Action & Government Liability (Thomson Reuters (Professional) Australia Limited, 6^th ed, 2017)

Cases cited:

Brennan v New South Wales Land & Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21

Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292; [2015] NSWCA 327
Day v Sanders (2015) 90 NSWLR 764; [2015] NSWCA 324
Kline v Official Secretary to the Governor General & Anor (2013) 249 CLR 645; [2013] HCA 52

Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

MZZYD v Minister for Immigration & Border Protection [2014] FCCA 1894

MZZYD v Minister for Immigration and Border Protection [2015] FCA 60; [2015] HCASL 99

Navazi v New South Wales Land & Housing Corporation [2015] NSWCA 308

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248

Applicant:

DRG16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3393 of 2016

Judgment of:

Judge Smith

Hearing date:

21 August 2017

Date of Last Submission:

21 August 2017

Delivered at:

Sydney

Delivered on:

31 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms F Graham

Solicitors for the Applicant:

Wotton & Kearney Lawyers

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3393 of 2016

DRG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks…

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 2063
Decision Date: 31 August 2017

CaseChat Overview and Summary

The applicant, DRG16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant DRG16 a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate of the Minister, in assessing DRG16's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Smith found that the delegate had failed to adequately consider crucial aspects of DRG16's claim for protection, specifically concerning the risk of persecution in the applicant's country of origin. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Kruger v Commonwealth*, emphasizing the importance of procedural fairness and the proper consideration of all relevant evidence in administrative decision-making. The failure to engage with significant portions of the evidence presented by DRG16 meant that the delegate had not undertaken the assessment required by the *Migration Act 1958* (Cth).

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders