FEDERAL COURT OF AUSTRALIA
DVE18 v Minister for Home Affairs [2019] FCA 1389
File number: NSD 1318 of 2018 Judge: MARKOVIC J Date of judgment: 30 August 2019 Catchwords: MIGRATION – application for an extension of time to file application for review of a decision of the Minister for Home Affairs (Minister) – whether the application had sufficient prospects of success – application allowed
MIGRATION – application for review of the Minister’s decision to refuse the applicant’s application for an Offshore Humanitarian visa Refugee and Humanitarian (Class XB) visa – where Minister not satisfied that applicant passed character test in s 501(1) of the Migration Act 1958 (Cth) (Act) – whether Minister failed to take into account physical safety of applicant’s wife and child and thereby denied the applicant procedural fairness and failed to undertake his statutory task – whether s 501(6) of the Act, properly construed, extends to conduct committed wholly outside Australia by a group not present in Australia – application dismissed
Legislation: Acts Interpretation Act 1901 (Cth) s 21(1)(b)
Federal Courtof Australia Act 1976 (Cth) ss 37AF, 37AG, 37AI
Migration Act 1958 (Cth) ss 477A, 501(1), 501(6)
Cases cited: Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588; [2017] FCA 929
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Minister for Immigrationand Border Protection v Sabharwal [2018] FCAFC 160
Rere v Minister for Immigration and Border Protection [2018] FCA 846
Sabharwal v Minister for Immigration and Border Protection (2018) 159 ALD 86; [2018] FCA 10
Date of hearing: 5 March 2019 Date of last submissions: 26 March 2019 (applicant) Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 87 Counsel for the Applicant: Mr S Prince SC and Mr S Lawrence Solicitor for the Applicant: Hearn Legal Counsel for the Respondent: Mr G R Kennett SC Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 1318 of 2018 BETWEEN: DVE18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
30 AUGUST 2019
THE COURT ORDERS THAT:
1.Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) the time for the making of an application pursuant to s 477A(1) of the Act in relation to the decision of the respondent made on 24 May 2018 is extended to 17 July 2018.
2.Grant leave to the applicant to file the amended originating application for review of a migration decision dated 26 February 2019 (Amended Application).
3.The Amended Application is dismissed.
4.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the grounds set out in s 37AG(1)(c) of the FCA Act, all evidence and information tending to reveal the identity of the applicant, his wife and child be suppressed for a period of 70 years from…
Keep reading for free
Create a free CaseChat account to read DVE18 v Minister for Home Affairs 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCA 1389
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the applicant’s application for an extension of time had sufficient prospects of success and whether the Minister’s failure to consider the safety of the applicant’s family constituted a jurisdictional error. The court considered the evidence provided by the applicant, including statutory declarations and a notification of changes in circumstances form, and examined whether these documents sufficiently established that the Minister had failed to consider the safety of the applicant’s family. The court found that the evidence did not establish that the Minister failed to have regard to a potential risk to the applicant’s family. Even if such a failure occurred, it did not amount to a jurisdictional error in the circumstances of this case.
The court allowed the application for an extension of time to file the amended application for review, noting that the order should operate for the duration of the applicant’s life, which was estimated to be 70 years. However, the court dismissed the amended application for review, finding that the Minister’s decision to refuse the visa application was not flawed. Consequently, the court ordered that the applicant pay the Minister’s costs.
Orders
Orders of the court
1. Pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) the time for the making of an application pursuant to s 477A(1) of the Act in relation to the decision of the respondent made on 24 May 2018 is extended to 17 July 2018.
2. Grant leave to the applicant to file the amended originating application for review of a migration decision dated 26 February 2019 (Amended Application).
3. The Amended Application is dismissed.
4. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the grounds set out in s 37AG(1)(c) of the FCA Act, all evidence and information tending to reveal the identity of the applicant, his wife and child be suppressed for a period of 70 years from the date of these Orders.
5. The applicant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Minister, in effect, made two submissions in response. First, he submitted that the evidence does not establish a failure by the Minister to have regard to a potential risk to the applicant’s family. In the alternative, the Minister submitted that if he did fail to consider the safety of the applicant’s family, that failure did not amount to a jurisdictional error in the circumstances of this case. Consideration The applicant accepts that risk to the safety of his wife and child was not a mandatory relevant consideration in the exercise of the power under s 501(1) of the Act. Rather, as developed in his oral submissions, the applicant contends that the Minister failed to consider his claim that his wife and child were at risk, which he said amounted to a denial of natural justice and a failure by the Minister to undertake his statutory duty. It is convenient to first consider the material relied on by the applicant, by which he says the claim that his wife and child were at risk was made. That evidence commences with the Visa Application which unsurprisingly, given its date, only related to the applicant. Next are two letters of recommendation which pre-date the Visa Application, the applicant’s marriage and the birth of his child. To the extent that any of those documents refer to the applicant’s family and a risk to their safety as a result of the applicant working as an interpreter, I cannot infer that the “family” so referred to is or included the applicant’s wife and child. Those references may be to other unparticularised members of the family, although it is not apparent, on the material, who they were. What is clear is that given their date those documents cannot be taken to refer to the applicant’s wife and child. Contrary to the applicant’s submission, those documents speak as at their date and cannot be interpreted to refer to events that occurred subsequently. The applicant also referred to the notification of changes in circumstances form which he lodged on 17 June 2016, by which his wife and child were added to the Visa Application, and which he says should have been taken into account as part of the claims and submissions that he made. However, that the nature of the Visa Application changed in 2016 to include the applicant’s wife and child does not change the nature and effect of the documents brought into existence in 2013. The balance of the evidence relied on is included in the statutory declarations made by Captain Scanes, Lieutenant Colonel Hick and the applicant’s former colleague. Those statutory declarations were made, in the case of Captain Scanes, after the applicant was married and more than a year before the birth of the child, and in the case of Lieutenant Colonel Hick and the applicant’s former colleague, after the applicant was married and shortly before the birth of the child. The maker of each statutory declaration refers to the risk to the applicant’s life and that of his family as a result of his working as an interpreter.