DZACC v Minister for Immigration - [2012] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 314

MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Reviewer failed to identify the real reason for the persecution allegedly feared by the applicant, denied the applicant procedural fairness by not providing adverse information to him, incorrectly identified the particular social group of which he was a member, failed properly to consider the availability of state protection and the reasonable practicability of relocation.

Migration Act 1958, ss.36, 46A, 91R, 195A

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319
SZFZN v Minister for Immigration & Multicultural Affairs [2006] FMCA 1153
Okere v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 112
SZQKC v Minister for Immigration & Citizenship [2012] FCA 249
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant:

DZACC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REA HEARN MACKINNON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 64 of 2011

Judgment of:

Cameron FM

Hearing date:

4 April 2012

Date of Last Submission:

4 April 2012

Delivered at:

Sydney (by video link to Darwin)

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the First Respondent:

Mr T. Anderson

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 64 of 2011

DZACC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REA HEARN MACKINNON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Pakistan who arrived at Christmas Island by boat on 15 March 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 29 May 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 23 June 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 20 May 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA assessment and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and…

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.

Continue reading DZACC v Minister for Immigration

Details

AGLC: DZACC v Minister for Immigration [2012] FMCA 314
Case: [2012] FMCA 314
Decision Date: 20 April 2012

CaseChat Overview and Summary

The case before the court involved an applicant, DZACC, who was seeking judicial review of a decision by the Minister for Immigration, which was based on a recommendation from an independent merits reviewer (Reviewer). The central issue was whether the applicant should be recognised as a person to whom Australia has protection obligations under the Migration Act. The applicant claimed that he faced persecution in his home country due to his membership in a particular social group and alleged that the Reviewer had erred in various respects, including by failing to properly identify the real reason for the persecution, denying him procedural fairness, misidentifying the particular social group, and not adequately considering the availability of state protection and the reasonable practicability of relocation.

The court was tasked with determining whether the Reviewer had correctly applied the law and made findings that were supported by the evidence. The court examined the grounds of review raised by the applicant, including whether the Reviewer had failed to identify the real reason for the alleged persecution, whether the applicant had been denied procedural fairness by not being provided with adverse information, whether the Reviewer had incorrectly identified the particular social group, and whether the Reviewer had failed to properly consider the availability of state protection and the reasonable practicability of relocation. The court considered the evidence presented and the relevant legal principles to assess the merits of the applicant’s claims.

Upon reviewing the evidence and applicable legal principles, the court found that the Reviewer had properly applied the law and made findings that were supported by the evidence. The court held that the Reviewer had correctly identified the real reason for the persecution, had not denied the applicant procedural fairness, had correctly identified the particular social group, and had properly considered the availability of state protection and the reasonable practicability of relocation. As a result, the court dismissed the application for judicial review. The Minister for Immigration’s decision, based on the Reviewer’s recommendation, was upheld, and the applicant was not recognised as a person to whom Australia has protection obligations.

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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