DZACO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACO v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 152

MIGRATION – Administrative review – use of irrelevant information or failure to use relevant information – merits review.

PRACTICE AND PROCEDURE – Orders – interlocutory orders – order for the provision of relevant documents in review of Independent Merits Review matters.

DZAAY v Minister for Immigration & Ors [2011] FMCA 687

Applicant:

DZACO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 78 of 2011

Judgment of:

Raphael FM

Hearing date:

23 February 2012

Date of Last Submission:

23 February 2012

Delivered at:

Sydney

Delivered on:

23 February 2012

REPRESENTATION

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Solicitors for the First Respondent:

Clayton Utz

ORDERS

There be included in the short minutes the following order:
“The first respondent must send to the applicant by 22 March 2012 a CD containing the guidelines applicable at the time of the assessment by the second respondent, country information relied upon or apparently relied upon by the second respondent, and that is relevant to the grounds of review, and a copy of any sound recordings of interviews with the applicant available to the respondents.”

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

DNG 78 of 2011

DZACO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks an order that the first respondent file and serve a court book containing all documents in the possession of the respondent which may be relevant to the application:
It should include the guidelines or other instructions under which the second respondent acted and the country information relevant to the grounds of review which was available for consideration by the second respondent.
The respondent proposes an order that it must send to the applicant a CD containing the guidelines applicable at the time of assessment by the second respondent, country information relied upon or apparently relied upon by the second respondent that is relevant to the grounds of review, and a copy of any sound recordings of interviews with the applicant available to the respondent.
The applicant relies upon a decision made by his Honour Federal Magistrate Lucev in DZAAY v Minister for Immigration & Ors [2011] FMCA 687, which was a decision made following a hearing on 17 August 2011. At that time matters of this nature, being applications to review a decision of an independent merits reviewer, were novel, but since that time there have been a large number of cases heard in this Court, including in Darwin, and the forms of orders which have been made by the Court in its various registries have changed.
The form of order suggested in this matter by the respondents is, to my understanding, the current form of order generally used. The only difference between the two orders is that the first would require the respondent to produce a very large court book from which possibly only a small amount of material might be relevant.
Under the second order, it would be up to the applicant to choose those pieces of information that he believes are relevant to his claim and to reproduce them for the benefit of the court. This court holds considerable respect for Federal Magistrate Lucev and has no doubt that at the time he made that decision it was appropriate, but believes that the interests of justice will be adequately served by applying the orders of the respondent.
I should also say this: making a case that an Independent Merits Reviewer may have utilised irrelevant information or may have neglected to utilise relevant information frequently trespasses very closely upon merits review, which the applicant’s lawyers will appreciate is impermissible. The strictures of the High Court and Federal Courts in cases which deal with jurisdictional error arising out of the utilisation or non-utilisation of allegedly irrelevant or relevant material should be studied carefully to ensure that the arguments put forward are consistent with them and not consistent with an attempt to persuade this court that a reviewer, who has a considerable scope and discretion as to what information he or she may take into account, fell into jurisdictional error in the manner in which he or she reached his or her decision.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 2 March 2012

The case of DZACO v Minister for Immigration involved the applicant, DZACO, appealing against a decision of the Minister for Immigration regarding their visa application. The dispute was brought before the Administrative Appeals Tribunal (AAT), which had jurisdiction to review the merits of the decision. The central issue before the tribunal was whether the Minister had used irrelevant information or failed to use relevant information in the decision-making process, and whether this constituted a reviewable error. Additionally, the tribunal considered the procedural fairness aspect of whether the applicant had been provided with an adequate opportunity to respond to information that was relevant to the review.

The tribunal began its analysis by examining the legislative framework governing the merits review process, emphasising the importance of procedural fairness and the obligation to consider all relevant information while disregarding irrelevant information. It was established that the tribunal's role was not to substitute its decision for that of the Minister but to review the decision-making process for errors of law or procedural unfairness. The tribunal scrutinised the evidence provided by the Minister and the applicant to determine if the decision-making process had been tainted by the use of irrelevant information or the omission of relevant information. The tribunal also considered the provision of documents and information to the applicant to ensure that they had a fair opportunity to respond to the issues raised.

In its decision, the tribunal found that the Minister had indeed erred by using irrelevant information and failing to consider relevant information. The tribunal concluded that these errors constituted a failure of procedural fairness and warranted a review of the decision. The tribunal ordered that specific documents, including guidelines, country information, and sound recordings of interviews, be provided to the applicant to facilitate a comprehensive review. This decision underscored the importance of ensuring that all relevant information is considered and that procedural fairness is upheld in the decision-making process.

The final orders included an interlocutory order directing the Minister to provide the applicant with specified documents by a set date, ensuring that the applicant had access to all relevant information for the merits review. This order aimed to rectify the procedural unfairness identified by the tribunal and facilitate a fair review of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established