DZAAE v Minister for Immigration - [2012] FMCA 752

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAE v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 752

MIGRATION – Independent Merit Reviewer’s recommendation – whether applicant meets criteria for a protection visa – stateless Shia Muslim Faili Kurd from Iran – whether failure to consider an integer of claim – whether jurisdictional error.

Constitution, s.75(v)
Migration Act 1958 (Cth), ss.5, 91R(2)(a), 476

Applicant:

DZAAE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 10 of 2011

Judgment of:

Lucev FM

Hearing date:

23 June 2011

Date of Last Submission:

23 June 2011

Delivered at:

Perth

Delivered on:

31 October 2012 (by telephone to Darwin)

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson and Ms A Hanley

Solicitors for the Applicant:

NT Legal Aid Commission

Counsel for the First Respondent:

Mr G Johnson SC and Mr P d’Assumpcao

Solicitors for the Second Respondent:

Australian Government Solicitor

For the Second Respondent

Submitting appearance, save as to costs.

DECLARATIONS AND ORDERS

The Court declares that the second respondent, in his capacity as Independent Merits Reviewer, did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant’s claim alleging a well-founded fear of persecution by reason of the applicant’s imputed or perceived…

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: [2012] FMCA 752
Decision Date: 31 October 2012 (by telephone to Darwin)

CaseChat Overview and Summary

The applicant, a stateless Shia Muslim Faili Kurd from Iran, sought judicial review of a recommendation by an Independent Merits Reviewer (IMR) that he not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The applicant argued that the IMR failed to consider his claim that he had a well-founded fear of persecution if returned to Iran by reason of his imputed or perceived Iraqi nationality, arising from him being treated as an Iraqi, or from a perceived link to Kurdish separatists. The Court found that the IMR failed to deal with the case that was presented to it, in that it failed to respond to a separate, substantial, clearly articulated claim, which had an arguable factual foundation in the material before the IMR. There was, therefore, a constructive failure to exercise jurisdiction. The Court declared that the IMR did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant's claim alleging a well-founded fear of persecution by reason of the applicant's imputed or perceived Iraqi nationality. The Court also ordered that the Minister be restrained from relying upon the IMR's recommendation of 16 February 2011.

Orders