DYK16 v Minister for Immigration - [2017] FCCA 2749

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYK16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2749

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority was required to disclose the reasons it was satisfied there were exceptional circumstances to justify considering new information – whether the Authority failed to disclose the particulars of new information – whether the Authority relied on evidence obtained where the applicant was denied procedural fairness – no error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CC, 473DC, 473DD, 473DE, 473EA

Sentencing Act 1991 (Vic), ss.31 (5), 31(5A)

Cases cited:

Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393

R v Steggall [2005] VSCA 278
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant:

DYK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2788 of 2016

Judgment of:

Judge McNab

Hearing date:

13 July 2017

Date of Last Submission:

13 July 2017

Delivered at:

Melbourne

Delivered on:

10 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr McBeth

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2788 of 2016

DYK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an amended application filed 15 June 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 2 December 2016 (‘the IAA decision’) pursuant to s.473CC(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). The IAA affirmed a decision of the delegate of the first respondent under s.65(1)(b) to refuse to grant the applicant a Safe Haven Enterprise Visa (‘SHEV’).
The amended application lists four grounds of review:
1. The Second Respondent’s finding that there were exceptional circumstances to justify its consideration the new information was made without disclosing any basis on which the Second Respondent could be satisfied that such exceptional circumstances existed, with the result that the Second Respondent failed to conduct its statutory task.
2. The Second Respondent failed to meet the requirements of section 473DE of the Migration Act 1958 (the Act) by not providing sufficient particulars.
3. The Second Respondent denied the applicant procedural fairness by failing to disclose the existence of a certificate under section 473GB of the Act and failing to give the applicant an opportunity to seek a favourable exercise of discretion under section 473GB of the Act and/or the validity of the certificate that was issued under s473GB (MZAFZ v Minister for Immigration and Border Protection 2016 FCA 1081).
4. The decision of the Second Respondent was affected by jurisdictional error, in that it relied upon the evidence obtained in the hearing before the delegate, in which the applicant was denied procedural fairness.
Ground three was not…

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: [2017] FCCA 2749
Decision Date: 10 November 2017

CaseChat Overview and Summary

DYK16 (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 from Iran, claimed to fear persecution on the basis of his imputed political opinion and imputed religious belief. The delegate of the Minister had found that the applicant's claims were not credible and therefore did not engage Australia's non-refoulement obligations. The applicant argued that the delegate's adverse credibility findings were unreasonable and that the delegate failed to consider relevant evidence.

The Federal Circuit Court was required to determine whether the delegate's adverse credibility findings were reasonably open on the evidence before the delegate, and whether the delegate had adequately considered all the evidence presented by the applicant. Specifically, the court had to assess whether the delegate's assessment of the applicant's claims of imputed political opinion and imputed religious belief was affected by an error of law, such as an unreasonable finding of fact or a failure to consider relevant material.

Judge McNab found that the delegate's adverse credibility findings were not reasonably open on the evidence. The delegate had failed to properly consider significant portions of the applicant's evidence, including documentary evidence and witness statements, which supported the applicant's claims. The court held that a delegate must engage with all relevant evidence and provide reasons for rejecting it, particularly when that evidence is material to the applicant's claims of persecution. The delegate's failure to do so rendered the decision unreasonable.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders