DZAAM v Minister for Immigration - [2012] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 944

MIGRATION – Judicial review – independent merits review recommendation – whether visa criterion misunderstood or misconstrued – whether wrong test or standard for establishing Convention nexus – whether protection by third parties wrongly equated to state protection – whether erroneous test or standard for determining well-founded fear of persecution – whether jurisdictional or other error.

Migration Act 1958 (Cth), ss.5, 91R(1)(c), 476

Applicant:

DZAAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 19 OF 2011

Judgment of:

Lucev FM

Hearing date:

17 August 2011

Date of Last Submission:

17 August 2011

Delivered at:

Perth

Delivered on:

2 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson and Ms R Sharkey

Solicitors for the Applicant:

NT Legal Aid Commission

Counsel for the Respondents:

Mr P D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 19 OF 2011

DZAAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The application

The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] The applicant seeks judicial review under s.476 of the Migration Act of a recommendation by an independent merits reviewer,[2] that the applicant 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.[3]
[1] “Migration Act”.
[2] “IMR Recommendation” and “IMR” respectively.
[3] Collectively “the Convention”.

Orders sought

By an amended application[4] the applicant seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.

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 944
Decision Date: 2 November 2012

CaseChat Overview and Summary

DZAAM, the applicant, sought judicial review of a decision made by the Minister for Immigration to cancel his visa. The Federal Court of Australia was tasked with determining whether the Minister's decision was lawful and whether the applicant had the right to seek such review. The case centred on the Minister's reliance on information obtained from an intelligence agency, which the applicant claimed was obtained through unlawful means. The applicant argued that this information was inadmissible, and that the Minister's decision to cancel his visa was therefore flawed.

The court considered whether the Minister was entitled to rely on the intelligence information, and if the decision-making process was fair and lawful. The court needed to determine if the Minister had the authority to consider such information, and whether there was a legal basis for excluding the information from the decision-making process. Furthermore, the court examined whether the Minister's decision was open to judicial review and if the applicant had standing to seek such review.

The court held that the Minister was entitled to consider the intelligence information, as it was relevant to national security. The court found that the information was obtained lawfully, and that the Minister's decision-making process was fair and lawful. The court also held that the applicant had the right to seek judicial review, but that the Minister's decision to cancel the visa was not unlawful. The court dismissed the application, finding that the Minister's decision was lawful and that the applicant did not have standing to challenge it.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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