FEDERAL COURT OF AUSTRALIA
DZACT v Minister for Immigration and Citizenship [2012] FCA 1001
Citation: DZACT v Minister for Immigration and Citizenship [2012] FCA 1001 Appeal from: DZACT v Minister for Immigration & Anor [2012] FMCA 557 Parties: DZACT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and TORY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 25 of 2012 Judge: MANSFIELD J Date of judgment: 13 September 2012 Catchwords: MIGRATION – application for protection visa – whether jurisdictional error – whether the appellant had raised a claim that was not considered by the independent reviewer Legislation: Migration Act 1958 (Cth) Cases cited: SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785 cited
MZYQZ v Minister for Immigration and Citizenship [2012] FMCA 265 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 citedDate of hearing: 29 August 2012 Place: Darwin Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the Appellant: N. Karapanagiotidis Solicitor for the Appellant: Northern Territory Legal Aid Commission Counsel for the First Respondent: T. Anderson Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 25 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZACT
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentTORY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
13 SEPTEMBER 2012
WHERE MADE:
DARWIN
THE COURT DETERMINES THAT:
1.The appeal be allowed.
2.The orders of the Federal Magistrates Court of 27 June 2012 be set aside.
3.The first respondent pay to the appellant his costs of the application including in the Federal Magistrates Court.
4.The appellant be granted leave to seek such further orders as are necessary and appropriate by 12 October 2012.
5.The first respondent be granted leave to make submissions in reply by 2 November 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 25 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZACT
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentTORY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MANSFIELD J
DATE:
13 SEPTEMBER 2012
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a 26 year old Iranian man, who arrived at Christmas Island on 20 September 2010.
On 26 September 2010 the appellant participated in an entry interview, and on 13 November 2010 requested a Refugee Status Assessment (RSA). The appellant’s RSA was refused by a delegate of the first respondent (the Minister) on 13 December 2010 was that the appellant was not entitled to a…
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- AGLC
- DZACT v Minister for Immigration and Citizenship [2012] FCA 1001
- Case
- [2012] FCA 1001
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address were whether the Federal Magistrate had erred in not identifying jurisdictional errors made by the independent reviewer. Specifically, the court had to determine if the independent reviewer had failed to consider a key claim made by the appellant, which was that he had been photographed with Mr. Baghi, and that this photograph was held by Iranian authorities. The appellant argued that this oversight was a significant error that affected the fairness and accuracy of the review process. The court also had to examine whether the Federal Magistrate correctly assessed the appellant's claims regarding persecution due to imputed political opinion and procedural fairness in the review process.
The court found that the Federal Magistrate had not erred in their assessment. The court noted that while the appellant argued that the independent reviewer had failed to consider his claim regarding the photograph, the reasons provided by the independent reviewer were comprehensive and the issue had been at least identified. The court further held that it was unnecessary to make a specific finding on every issue raised if the broader findings or rejected factual premises adequately covered the matter. The court found no basis to conclude that the independent reviewer had overlooked a dispositive issue. The court concluded that the Federal Magistrate's assessment was correct, and there was no jurisdictional error that required the appeal to be allowed.
The court dismissed the appeal, upholding the decision of the Federal Circuit Court. The Federal Magistrate's findings were affirmed, and the appellant's application for a protection visa was denied.
Orders
Orders of the court
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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
Grounds 1, 2 and 4 were reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Magistrate had erred in his approach to those three matters. The Federal Magistrate’s finding in respect of Ground 3 (that the independent reviewer’s findings that the appellant’s encounter with Mr Baghi would not cause the authorities to target the appellant was unreasonable and/or made without evidence) has not been appealed against. CONSIDERATION The appellant argued for three grounds of error on the part of the Federal Magistrate, although as is commonly the case the arguments really amounted to arguing that the Federal Magistrate erred in not finding “jurisdictional error” on the part of the independent reviewer in relation to matters argued before the Federal Magistrate. The three contentions were:(a)error in failing to have regard to relevant material and/or failing to make findings on material questions of fact in a manner that affected the exercise of its jurisdiction and/or denied the applicant procedural fairness;(b)error in failing to properly consider the appellant’s claim that he was at risk of persecution by reason of his imputed political opinion; and(c)error in denying the appellant procedural fairness by failing to direct the appellant to the live issues under review. It is convenient to deal with the first two contentions together. The starting point is to determine whether, as the appellant asserts, the independent reviewer made a finding about his claim that he had been photographed with Mr Baghi, and that the photograph was held by Iranian authorities. In essence, the argument centred upon and depended upon the appellant persuading the Court that the Federal Magistrate had erred in not identifying that the appellant had raised a claim that was not considered by the independent reviewer. The appellant says that the claim that the appellant had been photographed with Mr Baghi was central to his claim and that the independent reviewer failed to make an express finding on this, thereby supporting the inference that the Reviewer failed to deal with this issue. The appellant relies upon the reasoning of the Full Court in Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.