DVG17 v Minister for Immigration - [2018] FCCA 3842

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVG17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3842

Catchwords:
MIGRATION – Application to review decision of the IAA – whether the Authority erred by declining to consider new information in accordance with s.473DD of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DD

Privacy Act 1988 (Cth), s.6

Cases cited:

ABC17 v Minister for Immigration and Border Protection [2018] FCA 254

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192;

(2017) 257 FCR 148

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013)

210 FCR 505

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16; (2018) 353 ALR 600

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003]

HCA 6; (2003) 214 CLR 1

Applicant:

DVG17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2680 of 2017

Judgment of:

Judge Barnes

Hearing date:

25 June 2018

Date of Last Submission:

1 August 2018

Delivered at:

Sydney

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Carey

Solicitors for the Applicant:

Wotton + Kearney Solicitors

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ of certiorari issue quashing the decision of the Second Respondent dated 31 July 2017.
A writ of mandamus issue directed to the Second Respondent requiring it to determine the application for review of the decision of a delegate of the First Respondent dated 22 June 2017 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2680 of 2017

DVG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Immigration Assessment Authority (the Authority) made on 31 July 2017 refusing to grant the Applicant a temporary protection (Class XD) visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia in September 2012. On 4 September 2015, while in detention on Christmas Island, he applied for a protection visa. He did not have a migration agent acting for him at that time.
On 22 June 2017 the application was refused. On 28 June 2017 the matter was referred to the Authority for review. As indicated, on 31 July 2017 the Authority affirmed the decision not to grant the referred Applicant a protection visa.
The Applicant claimed to fear…

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 3842
Decision Date: 21 December 2018

CaseChat Overview and Summary

DVG17 sought judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the Minister for Immigration's refusal to grant a visa. The central dispute concerned whether the MRT had erred in declining to consider new information provided by DVG17 in accordance with section 473DD of the *Migration Act 1958* (Cth). The matter came before Judge Barnes of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the MRT had correctly applied section 473DD of the *Migration Act*, which governs the consideration of new information by the Tribunal. Specifically, the Court had to determine if the MRT's refusal to consider the information provided by DVG17 was a jurisdictional error.

Judge Barnes reasoned that section 473DD requires the MRT to consider new information if it is relevant to the decision being reviewed, unless certain exceptions apply. The Court found that the MRT had failed to properly engage with the new information provided by DVG17 and had not adequately explained why it was not considered. The legal principle applied was that a failure to consider relevant information in accordance with statutory requirements can constitute a jurisdictional error.

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

Orders