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DXJ18 v Minister for Home Affairs

DXJ18 v Minister for Home Affairs

Case [2019] FCCA 204 4 February 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DXJ18 v MINISTER FOR HOME AFFAIRS

[2019] FCCA 204

Catchwords:
MIGRATION – Review of a decision by a delegate of the respondent – whether delegate of the respondent’s decision affected by jurisdictional error – whether a delegate of the respondent erred in their application of reg.2.05 of the Migration Regulations 1994 (Cth) – whether a delegate of the respondent considered all claims made by the applicant – whether the findings of a delegate of the respondent were open to it – whether the delegate erred in replicating the reasons in a recommendation prepared by an officer of the Department of Home Affairs – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), ss.476, 41

Migration Regulations 1994 (Cth), reg.2.05, sch.8

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994)
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518
Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 553

Applicant:

DXJ18

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

SYG 1595 of 2018

Judgment of:

Judge Emmett

Hearing dates:

4 December 2018, 29 January 2019

Date of Last Submission:

7 December 2018

Delivered at:

Sydney

Delivered on:

4 February 2019

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1595 of 2018

DXJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of delegate of the first respondent (“the Delegate”) made on 4 June 2018 refusing the applicant’s request for waiver of no further stay condition 8534 (“Condition 8534”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework and a summary of the decision of the Delegate.

Background

The applicant arrived in Australia on 21 June 2009 having departed legally from China on a passport issued in his own name and a Student Guardian (Subclass 580) visa subject to Condition 8534.
On 31 March 2014, the applicant lodged an application for a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
On 22 December 2014, the applicant’s application for a Protection Visa was refused.
On 9 April 2018, the applicant lodged a…

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.

Continue reading DXJ18 v Minister for Home Affairs

Details

AGLC: DXJ18 v Minister for Home Affairs [2019] FCCA 204
Case: [2019] FCCA 204
Decision Date: 4 February 2019

CaseChat Overview and Summary

DXJ18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant the applicant a Protection visa. The applicant, who is a citizen of Vietnam, claimed to have a well-founded fear of persecution if returned to Vietnam due to his alleged involvement in a criminal organisation and his subsequent fear of retribution from that organisation. The Minister's delegate had refused the visa application, finding that the applicant did not meet the criteria for a Protection visa, specifically that he did not establish a well-founded fear of persecution. The applicant challenged this decision in the Federal Court of Australia.

The primary legal issue before Emmett J was whether the delegate's decision was affected by jurisdictional error. This involved determining whether the delegate had failed to exercise the power conferred upon them by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) to assess the applicant's claim for a Protection visa. Specifically, the court had to consider whether the delegate had failed to consider relevant evidence or had taken into account irrelevant considerations in reaching their conclusion. The applicant argued that the delegate had failed to properly assess the credibility of his claims regarding his involvement with the criminal organisation and the consequent fear of persecution.

Emmett J found that the delegate had made a jurisdictional error. His Honour concluded that the delegate had failed to adequately consider the evidence presented by the applicant concerning his alleged involvement with the criminal organisation and the potential for retribution. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims. Consequently, the delegate had not properly exercised the power to determine whether the applicant had a well-founded fear of persecution.

The court ordered that the decision of the Minister's delegate be quashed and remitted the application for a Protection visa to the Minister for reconsideration according to law.

Orders