DZABX v Minister for Immigration - [2012] FMCA 1157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABX v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1157

MIGRATION – Judicial review – independent merits review – whether failure to provide country information – whether failure to provide opportunity to comment on country information – whether failure to deal with claims of risk of persecution – whether error of law – whether denial of procedural fairness.

Migration Act 1958 (Cth), ss.5, 476
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Applicant:

DZABX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ANNE GRANT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 59 of 2011

Judgment of:

Lucev FM

Hearing date:

30 March 2012

Date of Last Submission:

30 March 2012

Delivered at:

Perth

Delivered on:

7 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms N Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr T Anderson

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION AND ORDER

The Court declares that the Second Respondent, in his capacity as an independent merits reviewer, denied the Applicant procedural fairness by failing to provide to the Applicant adverse country information contained in the UK Border Agency, Country of Origin Information Report, Sri Lanka, of 11 November 2010.
The Court orders that the First Respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the Second Respondent’s recommendation of…

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 1157
Decision Date: 7 December 2012

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, DZABX, the applicant, sought relief under s.476 of the Migration Act 1958 (Cth), in respect of a recommendation made by an independent merits reviewer (IMR). The IMR had recommended that the applicant not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees. The applicant sought, amongst other things, a declaration that the IMR Recommendation was not made in accordance with law, an injunction restraining the Minister from relying on the IMR Recommendation, and costs. Ground 1 of the application was that the IMR had failed to provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information. Ground 2 of the application was that the IMR had failed to consider the applicant's claims that he was at risk of persecution for reasons of being a failed asylum seeker who had been absent from Sri Lanka since 2006, and thereafter living as a refugee in India before travelling to Australia, and that he was at risk of persecution for reasons of having departed Sri Lanka illegally. The court held that ground 1 was made out, as the IMR had failed to refer to a part of the UK Border Agency, Country of Origin Information Report, Sri Lanka, of 11 November 2010, which contained information that was adverse to the applicant. The court held that ground 2 was not made out, as the IMR had considered the applicant's absence from Sri Lanka since 2006, and his time in India, in determining this matter, and there was no claim made that the applicant had departed Sri Lanka illegally. The court ordered that the Minister be restrained from relying on the IMR Recommendation, and that the matter be remitted to the court to determine costs.

Orders