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DZAAK v Minister for Immigration

DZAAK v Minister for Immigration

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Case Copied 13 November 2012 43 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1027

MIGRATION – Judicial review – independent merits review – psychological report – whether error of law in failing to place weight on psychological report – whether denial of procedural fairness in dealing with psychological report – whether evidence of tampering with covering email for fatwa issued against applicant.

EVIDENCE – Admissibility of psychological report and witness qualifications.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Evidence Act 1995 (Cth), s.56(2)
Migration Act1958 (Cth), ss.5, 36(2), 476(1)

Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Goodricke v Comcare (2011) 122 ALD 546; [2011] FCA 694
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Khanam v Minister for Immigration & Citizenship & Another (2009) 111 ALD 421; [2009] FCA 966
Kioa v West (1985) 159 CLR 550
Lindsay v Director of Professional Services Review & Ors [2011] FCA 262
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 89; [2003] FCAFC 262
NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24
Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249
Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant
S1910/03 v Minister for Immigration & Multicultural Affairs [2006] FCA 1713

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Servos v Repatriation Commission (1995) 56 FCR 377

SBBJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 761

Stead v State Government Insurance Commission (1986) 161 CLR 141
Sullivan v Department of Transport (1978) 20 ALR 323
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZIEW v Minister for Immigration & Citizenship (2008) 101 ALD 295; [2008] FCA 522
SZKHD v Minister for Immigration & Citizenship [2008] FCA 112
SZLGP v Minister for Immigration & Citizenship (2009) 181 FCR 113; [2009] FCA 1470
SZMIB v Minister for Immigration and Citizenship [2008] FMCA 1433
SZORG v Minister for Immigration & Citizenship [2011] FCA 647
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437

Yarlagadda v Minister for Immigration & Multicultural…

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 1027
Decision Date: 13 November 2012

CaseChat Overview and Summary

The applicant, an Iraqi citizen, sought judicial review of a recommendation by an independent merits reviewer that he not be recognised as a person to whom Australia owes 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 reviewer erred in law in placing no weight on a psychological report and in failing to give him procedural fairness in its treatment of the report. The applicant also argued that there was no evidence to support the reviewer's finding that the date stamp of the covering email for a fatwa issued against the applicant had been tampered. The Court dismissed the application. The Court found that the reviewer's decision to give no weight to the psychological report was a matter of fact and that the reviewer had not misconceived her duty in so doing. As to the fatwa, the Court found that the question of its authenticity was a question of fact for the reviewer and that the reviewer had properly raised the question of whether the email had been tampered with. The Court dismissed the application and made orders accordingly.

Orders