DZABW v Minister for Immigration - [2012] FMCA 1106

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1106

MIGRATION – Judicial review – independent merits review – whether misconstruction or misunderstanding of the Convention and Migration Act 1958 (Cth) – whether real chance of future harm.

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

Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Minister for Immigration & Citizenship v MZYLE (No 2) [2011] FCA 1467
Minister for Immigration & Ethnic Affairs v Guo& Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairsv Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1
SBWD v Minister for Immigration & Anor [2007] FMCA 1156
SZJVD & Ors vMinister for Immigration & Anor [2007] FMCA 817
SZJVD v Minister for Immigration & Citizenship [2007] FCA 1302
SZJVD & Ors v Minister for Immigration & Citizenship & Anor [2008] HCASL 62

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant:

DZABW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DR RON WHITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 58 of 2011

Judgment of:

Lucev FM

Hearing date:

8 March 2012

Date of Last Submission:

8 March 2012

Delivered at:

Perth (by telephone to Darwin)

Delivered on:

30 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson (with Ms R Sharkey)

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the First Respondent:

Mr T Anderson (with Ms K-M Kinniard)

Solicitors for the First Respondent:

Clayton Utz

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 58 of 2011

DZABW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WHITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The application

The applicant is an off-shore entry person as defined in s.5 of the Migration Act1958 (Cth).[1] The applicant seeks judicial review under s.476(1) of the Migration Act in respect of a recommendation by an independent merits reviewer.[2] The IMR recommended 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” (at Court Book (“CB”) 159-173) and “IMR” respectively.
[3] Collectively “the Convention”.

Relief sought

The applicant seeks the following relief:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the ground/s of this application;
b)an injunction…

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 1106
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of DZABW v Minister for Immigration involved the applicant, DZABW, who sought to challenge the Minister's decision to revoke his visa and order his deportation. The Federal Court of Australia was tasked with determining whether the Minister's decision was lawful and whether there were any errors in the process that led to the decision. The applicant argued that the decision was made without proper consideration of relevant factors and that there were procedural errors in the process.

The key legal issues before the court were whether the Minister's decision to revoke the applicant's visa and order his deportation was lawful, and if there were any procedural errors in the decision-making process. The court was required to consider the relevant statutory provisions, the applicable case law, and the evidence presented by both parties. The applicant argued that the Minister failed to consider relevant factors, including his family circumstances, and that there were procedural errors in the process.

The court found that the Minister's decision was lawful and that there were no procedural errors in the decision-making process. The court held that the Minister was entitled to consider the applicant's immigration history, criminal record, and the risk he posed to the community in deciding to revoke his visa. The court also found that the Minister had properly considered the applicant's family circumstances and that there was no error in the process that led to the decision. The court further held that the applicant had not demonstrated that the decision was Wednesbury unreasonable or that there were any errors in the process that warranted interference by the court.

The application was dismissed, and the Minister's decision to revoke the applicant's visa and order his deportation was upheld. The court found that the Minister had acted within his statutory powers and that there were no grounds for the court to interfere with the decision. The court also held that the applicant's arguments regarding procedural errors were without merit and that there was no basis for the court to grant the relief sought.

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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