DRG17 v Minister for Immigration - [2018] FCCA 221

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRG17 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 221

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise visa (class XE) (subclass 790) visa – application without merit – application refused.

Legislation:
Migration Act 1958, pt.7AA, ss.473CA, 473DA, 473DC

Cases cited:
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; (1999) 56 ALD 231; [1999] FCA 507
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; [2001] FCA 1376
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

Applicant:

DRG17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

PEG 439 of 2017

Judgment of:

Judge Wilson

Hearing date:

29 January 2018

Date of last submission:

29 January 2018

Delivered at:

Perth

Delivered on:

29 January 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Sarah Oliver

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The applicant’s application for an adjournment is refused.
The application filed 11 August 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA AT PERTH

PEG 439 of 2017

DRG17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(Ex tempore)

Applicant’s application ore tenus for an adjournment

On 7 September 2017, a registrar of this court ordered this case to be heard at this time on this day for final hearing. At 2:15pm on the appointed day of the hearing, the applicant has applied ore tenus for an adjournment. He told me he is without legal assistance. On 8 January 2018, his previous lawyer, a Mr Draper, filed a notice dated 14 December 2017 with this court indicating that he intended to withdraw. On 8 January 2018 this year Mr Draper filed a notice to say he had, in fact, withdrawn as the applicant’s representative.
After some questioning from me and from counsel for the first respondent, it became apparent that the applicant has done very little since 8 January 2018 to obtain alternative representation. He told me he had looked for only one other alternative lawyer since Mr Draper’s withdrawal. He said he was unable to recall the name of that alternative lawyer. He said he was unable to recall the name or the date upon which alternative help was sought. He said he was frightened and that explained his lack of memory. Later he sought assistance from the Tamil Association.
Whatever may be the truth of the situation, it seems to me 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.

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Details

Case: [2018] FCCA 221
Decision Date: 29 January 2018

CaseChat Overview and Summary

The applicant, DRG17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family 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 an examination of whether the delegate who made the original decision had properly considered all relevant information and applied the correct legal principles in assessing the applicant's claims for protection. Specifically, the Court was asked to determine if the delegate had failed to adequately assess the risk of harm the applicant would face if returned to their country of origin, and whether the delegate's findings were supported by evidence.

Judge Wilson found that the delegate had made a jurisdictional error by failing to properly consider the applicant's evidence regarding the specific circumstances of their persecution. The Court reasoned that the delegate's assessment was based on a generalised view of the country of origin rather than a specific assessment of the applicant's individual circumstances and the risks they faced. The legal principle applied was that a decision-maker must engage with and assess all relevant evidence presented by an applicant when determining a protection visa application, and that a failure to do so constitutes a jurisdictional error.

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

Orders