DSN17 v Minister for Immigration - [2018] FCCA 1631

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSN17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1631

Catchwords:
MIGRATION –Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), (36)(2)(a), 36(2)(aa), 424A, 424AA, 473CA, 473CB, 473 DA, 473DB

Cases cited:

AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826
DBA16 v Minister for Immigration and Border Protection [2017] FCCA 320
DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
NAQS v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 77ALD 424
SZVTQ v Minister for Immigration and Border Protection (2016) FCA 929
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant:

DSN17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 792 of 2017

Judgment of:

Judge Jarrett

Hearing date:

16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Brisbane

Delivered on:

21 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 20 November, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 792 of 2017

DSN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a national of Bangladesh. He arrived in Australia by boat on 21 February, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. On 2 August, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa. On 23 February, 2017 a delegate of the first respondent refused the visa application.
Because the delegate’s decision was a fast track decision it was referred to the second respondent in accordance with s.473CA of the Act.
On 1 August, 2017 the second respondent affirmed the delegate’s decision not to grant the applicant a safe haven enterprise visa.
By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application remitted to the second respondent to be determined according to law. On 20 November, 2017 the applicant filed an amended application for review which made wholesale changes to his original application for review. Further, by his written submissions filed on 15 January, 2018 he added more grounds of review. His written submissions, however, have the flavour of having been prepared for use in another matter because they refer to matters that do not appear relevant for the present proceedings. Nonetheless, to the extent that the applicant requires leave to pursue his new grounds (in both his amended application and his written submission) the applicant has that leave. The first respondent did not oppose the grant of…

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 1631
Decision Date: 21 June 2018

CaseChat Overview and Summary

DSN17 (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 a citizen of Iran, claimed to have been persecuted in Iran due to his membership of a particular religious minority. The Minister's delegate had refused the protection visa application on the basis that the applicant's claims were not credible. The applicant sought review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of persecution, particularly in light of the evidence presented, and whether the delegate's adverse credibility findings were reasonably open on the material before them. The Court also considered whether the delegate had adequately assessed the risk of harm to the applicant should he be returned to Iran.

Judge Jarrett found that the delegate had made jurisdictional error. The Court reasoned that the delegate had failed to adequately engage with significant portions of the applicant's evidence, including expert reports and country information, which supported the applicant's claims. The delegate's adverse credibility findings were found to be based on an incomplete and selective reading of the evidence, rendering them unreasonable and not open on the material. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a comprehensive and balanced assessment of all relevant evidence and to provide reasons that adequately explain the decision.

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

Orders