DWY17 v Minister for Immigration - [2019] FCCA 1246

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWY17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1246

Catchwords:
MIGRATION – Judicial review – Immigration Assessment Authority – reasonableness and practicability of relocation – whether a “well-founded fear of persecution” applies in all areas of a country – “internal relocation” principle – requirement for assessment of reasonableness.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa) - 36(2B)(a), 5J(1)(c)

Cases cited:

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

DZU16 v Minister for Immigration and Border Protection (2017) 321 FLR 306
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526

MZANX v Minister for Immigration and Border Protection [2017] FCA 307
FAB17 v Minister for Immigration and Border Protection [2018] FCCA 2933

Applicant:

DWY17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 358 of 2017

Judgment of:

Judge Young

Hearing date:

12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Darwin

Delivered on:

12 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Barnes

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Counsel for the First Respondent:

Mr Evans

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application filed 4 September 2017 be dismissed.
The applicant pay the first respondent’s costs in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 358 of 2017

DWY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 31 July 2017 affirming the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The applicant is an Afghan citizen of Hazara ethnicity and is a member of the Shia sect of Islam. His protection claims were, and I summarise, as follows. He said that following sectarian clashes between Sunni and Shia students at Kabul University in 2012 he was targeted for kidnap by the Taliban. The applicant said that he was subsequently kidnapped but escaped and then fled to Australia soon after. He arrived in Australia in 2013.
The Authority found the applicant’s narrative of events to be implausible and inconsistent and did not accept that he had been targeted and kidnapped as he claimed. However, the Authority accepted that as an Hazara and a Shia he was at real risk of serious harm in much but not all of Afghanistan. It found that he was not at risk on any refugee ground in his home district of Jaghori but would be at risk if he travelled away from Jaghori.
In addition, in relation to Kabul, the Authority found that he was not at real risk of serious harm pursuant to section 5J(1)(c)…

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 1246
Decision Date: 12 April 2019

CaseChat Overview and Summary

DWY17 (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 was of Sudanese origin, had arrived in Australia without a visa and claimed to fear persecution in Sudan due to his ethnicity and political opinions. The Minister had refused the protection visa application, finding that the applicant's claims were not credible. The matter came before Judge Young in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant's claims of persecution, particularly in relation to the risk of harm from state actors and non-state actors, and whether the delegate had adequately assessed the applicant's credibility. The applicant also contended that the delegate had failed to provide adequate reasons for the decision.

Judge Young found that the delegate had failed to properly consider the evidence before them, particularly concerning the applicant's claims of persecution based on his ethnicity and political opinions. The Court held that the delegate's assessment of the applicant's credibility was flawed, as it did not adequately engage with the specific details of the applicant's account and the objective country information relating to Sudan. Furthermore, the Court determined that the reasons provided for the refusal were insufficient, failing to adequately explain how the delegate had reached their conclusions regarding the lack of a real chance of persecution. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide adequate reasons for their findings.

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

Orders