DRM19 v Minister for Immigration - [2020] FCCA 1190

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRM19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1190

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – bias.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12, Sch.1

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

BBT16 v Minister for Home Affairs [2018] FCA 1225
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Nobarani v Mariconte [2018] HCA 36
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Applicant:

DRM19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 380 of 2019

Judgment of:

Judge Jarrett

Hearing date:

14 May 2020

Date of Last Submission:

14 May 2020

Delivered at:

Brisbane

Delivered on:

15 May 2020

REPRESENTATION

The Applicant in person via telephone link assisted by a Nepalese interpreter

Solicitors for the First Respondent:

Australian Government Solicitor

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 25 September 2019 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 380 of 2019

DRM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By his application to show cause filed on 25 September, 2019 the applicant seeks judicial review of a decision of the second respondent dated 21 August 2019, which affirmed a decision of a delegate of first respondent to refuse the applicant a Protection (Class XA) (Subclass 866) visa.
Despite having the opportunity to do so, the applicant has not filed any amended application and he seeks to proceed on his application as originally filed. Further, despite being directed to do so, the applicant has not filed any written submissions in support of his application.
I have the benefit of written submissions from the first respondent. The first respondent contends that the application fails to raise an arguable case for the relief sought and must be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant arrived in Australia on a Visitor (Business) (Class FA) (Subclass 600) visa on 29 August, 2014. He is a citizen of Nepal. On 6 October, 2014 he applied for a Protection (Class XA) (Subclass 866) visa.
An interview was scheduled for the purposes of his visa application with a delegate of the first respondent. After failing to attend his first scheduled interview, the applicant attended a rescheduled interview on 29 February, 2016. In his written statement made for the purposes of his visa application, the applicant claimed to fear harm from gangsters who had robbed him of 45 Lakhs that he was holding overnight for a local school after a fundraising event in November,…

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.

Keep reading for free

Create a free CaseChat account to read DRM19 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1190
Decision Date: 15 May 2020

CaseChat Overview and Summary

The applicant, DRM19, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter came before Judge Jarrett in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's eligibility for the visa.

Judge Jarrett found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's assessment of the applicant's claims regarding their past conduct. The Court held that the delegate had misinterpreted or overlooked crucial evidence presented by the applicant, which was relevant to the assessment of their character and suitability for the visa. This failure to properly consider the evidence meant that the delegate had not undertaken the assessment required by the relevant legislative provisions, thereby vitiating the decision.

Consequently, Judge Jarrett quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders