DTP17 v Minister for Immigration - [2019] FCCA 10

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTP17 v MINISTER FOR IMMIGRATION & ORS

[2019] FCCA 10

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister to seize a document as bogus and review of a decision of the Immigration Assessment Authority to refuse a protection visa – consideration of the Court’s jurisdiction to review the decision to seize the document and the anterior decision that the document was bogus – seizure decision conceded as affected by jurisdictional error – Authority decision free of jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.2, 15C

Commonwealth Constitution 1901 (Cth), s.75

Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 15, 16

Migration Act 1958 (Cth), ss.5, 5AA, 5J, 51A, 36, 46A, 57, 65, 68, 91W, 357A, 360, 422B, 425, 473BB, 473CA, 473DA, 473GA, 473GB, 474, 476, 477, 487J 487ZI, 487ZJ, 487ZK

Cases cited:

AGG17 v Commonwealth of Australia [2018] FCA 242

ALV16 v Minister for Immigration & Anor [2018] FCCA 626

Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117

AXE16 v Minister for Immigration [2018] FCA 646

BJB16 v Minister for Immigration [2018] FCAFC 49

Buck v Bavone (1976) 135 CLR 110

BVD17 v Minister for Immigration [2018] FCAFC 114

CHM16 v Minister for Immigration [2018] FCA 1132

CID15 v Minister for Immigration [2017] FCA 780

CRJ17 v Minister for Immigration [2018] FCA 1404

DBE16 v Minister for Immigration [2017] FCA 942

DGZ16 v Minister for Immigration [2018] FCAFC 12

DVY17 v Minister for Immigration [2018] FCCA 3239

Minister for Immigration v DZU16 (2018) 253 FCR 526

Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377
Minister for Immigration v SZSSJ (2016) 259 CLR 180
Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Macks; Ex parte Saint (2000) 204 CLR 158
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594

Applicant:

DTP17

First Respondent:

COMMONWEALTH OF AUSTRALIA

Second Respondent:

HAKAN HONEINE

Third Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Fourth Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2307 of 2017

Judgment of:

Judge Driver

Hearing dates:

19 November, 19 December 2018

Delivered at:

Sydney

Delivered on:

21 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr V Kline

Counsel for the First and Third Respondents:

Mr B Kaplan

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

A writ of certiorari shall issue, removing into this Court the record of the delegate’s decision made on 27 April 2017 to seize the applicant’s identity card, for the purpose of quashing it.
In the event that no fresh decision to seize the identity card is made within 21 days, the Minister is to return the card to the applicant as soon as practicable thereafter.
The application as amended on 19 June 2018 is otherwise dismissed.

FEDERAL CIRCUIT…

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: [2019] FCCA 10
Decision Date: 21 February 2019

CaseChat Overview and Summary

The applicant, DTP17, sought judicial review of two decisions: first, a decision by a delegate of the Minister for Immigration to seize a document as "bogus," and second, a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether it possessed jurisdiction to review the decision to seize the document and the anterior decision that the document was bogus, and whether the IAA's decision to refuse the protection visa was affected by jurisdictional error.

The Court found that the decision to seize the document as bogus was conceded by the respondent to be affected by jurisdictional error. However, the Court determined that the IAA's decision to refuse the protection visa was free of jurisdictional error.

Consequently, the Court made orders in relation to the seized document, but the application for review of the IAA's decision was dismissed.

Orders