DZAFF v Minister for Immigration - [2015] FCCA 544

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAFF v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 544

Catchwords:
MIGRATION – Application for judicial review of Independent Merits Reviewer (“IMR”) decision – whether reviewer’s decision “illogical” and not open to any reasonable reviewer – whether reviewer denied applicant natural justice by sending adverse issues letter to applicant’s agent – whether reviewer failed to follow previous decision of Refugee Review Tribunal – grounds of application not made out.

Legislation:

Migration Act 1958, s.36(2aa)

1001288 [2010] RRTA 912
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270
Percerep v Minister for Immigration and Multicultural Affairs [1998] 86 FCR 483

Applicant:

DZAFF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 59 of 2014

Judgment of:

Judge Burchardt

Hearing date:

12 February 2015

Date of Last Submission:

25 February 2015

Delivered at:

Melbourne (By video to Darwin)

Delivered on:

13 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Burnside QC with Ms Kirwan

Solicitors for the Applicant:

Ward Keller

Counsel for the First Respondent:

Mr Anderson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DNG 59 of 2014

DZAFF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

This application was filed on 22 December 2014 and seeks judicial review of an Independent Merits Review decision, dated 23 August 2012. The grounds are set out in the application, and are expanded in written submissions filed on 5 February 2015 following orders made by a Registrar on 23 January 2015. A further affidavit was filed by the applicant's solicitor also on 5 February 2015.
The matters raised by the applicant assert jurisdictional error by the Reviewer. They involve a very detailed examination, both of what the applicant has had to say from time to time and the process whereby the Reviewer dealt with the matter. In these circumstances, it is, in my view, appropriate to start by examining the materials contained in the Court Book (“CB”).

The Materials in the Court Book

The applicant is a citizen of Iran who arrived in Australia on 29 May 2010. His unauthorised arrival interview is at CB13-39, and took place on 1 July 2010. At CB23 (continued on CB32), the applicant responded to the question, "Why did you leave your country of nationality (country of residence)?” I shall paraphrase the applicant's response.
The applicant had a girlfriend who worked with the Sepah. Her brothers also worked with the Sepah and with the Basij. The applicant entered into a relationship with the girl until the day he made a sexual relationship with…

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: [2015] FCCA 544
Decision Date: 13 March 2015

CaseChat Overview and Summary

The applicant, DZAFF, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to provide satisfactory evidence of his identity. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa, on the grounds that the applicant had not provided satisfactory evidence of his identity, was affected by jurisdictional error. This involved an examination of the requirements for establishing identity under the relevant migration legislation and the Minister's obligations in assessing such evidence.

Judge Burchardt reasoned that the Minister's assessment of the applicant's identity evidence was flawed. The Court found that the delegate had failed to properly consider all the evidence presented by the applicant, including documentary evidence and oral testimony, in assessing the applicant's identity. The delegate had placed undue emphasis on the absence of a specific type of identification document, without adequately weighing the cumulative effect of the other evidence. The Court applied the principle that a decision-maker must consider all relevant evidence and cannot arbitrarily disregard material that supports an applicant's case.

The Court found that the Minister's decision was affected by jurisdictional error and ordered that the decision be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders