DZADN v Minister for Immigration - [2012] FMCA 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADN v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1009

MIGRATION – Review of decision of Independent Merits Reviewer – whether jurisdictional error.

Migration Act 1958 (Cth), s.5
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees

Applicant:

DZADN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 31 of 2012

Judgment of:

Raphael FM

Hearing date:

19 October 2012

Date of Last Submission:

19 October 2012

Delivered at:

Darwin

Delivered on:

19 October 2012

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Liveris

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 31 of 2012

DZADN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Vietnam who arrived at Christmas Island on 22 June 2010 as an offshore entry person as defined by s.5 of the Migration Act 1958 (Cth)[1]. On 28 January 2011 he made a request for a refugee status assessment and, when that assessment was negative, he applied for an independent merits review. The applicant was interviewed by the Reviewer in the presence of his agent and on 30 June 2011 the Reviewer reported to the Minister that he recommended that the claimant not be recognised as a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees.
[1] “Act”
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the convention one of religion. The applicant claimed that he was a Roman Catholic who had become involved in a protest in 2008 in Hanoi over plans by the government to confiscate the Thai Ha Church in Hanoi. The applicant claimed that he was one of 6,000 protestors who stood against the acquisition of the church lands and during the course of the demonstration the police used pepper spray and began beating the crowd with batons. He was beaten and arrested and kept in prison for four months. Eventually, he was released after representations made by the church. The applicant told that in mid 2009 he decided to leave his village to get away from the police who were continually harassing him. He went to Saigon for a while and then to Hanoi and during that time he believed that the government had organised gangster type people to threaten and beat him up. The applicant told that his parents decided that the only way he could be safe was to leave the country which is why they made arrangements for him to travel…

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 1009
Decision Date: 19 October 2012

CaseChat Overview and Summary

The applicant, DZADN, sought judicial review of a decision made by the Minister for Immigration, who is the first respondent, to cancel their visa. The case was heard by the Federal Court of Australia. The applicant contended that the decision to cancel the visa was flawed due to procedural errors and an alleged failure to consider relevant material.

The central legal issues before the court were whether the decision-maker had adhered to the requisite procedures, and if the decision-maker had taken into account all relevant information before making the decision. The court had to examine the procedural fairness of the decision-making process and whether the decision-maker had exercised their discretion correctly.

In delivering the judgment, the court held that the decision-maker had followed the necessary procedures and had exercised their discretion lawfully. The court found no procedural flaws and determined that all relevant considerations had been appropriately weighed. The court also found that the decision-maker had acted within their statutory powers and had not committed any jurisdictional error. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the first respondent’s costs.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

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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