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DZAFH v Minister for Immigration

DZAFH v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAFH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 387

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where application for review given to detention centre officer to send to Refugee Review Tribunal – where application not transmitted by facsimile within the time prescribed for making application for review – where tribunal held it had no jurisdiction to determine application for review – where tribunals determination was correct.

Legislation:

Acts Interpretation Act 1901, s.36(1)

Migration Act 1958, ss.189, 411(1)(c), 412(1)(a), 412(1)(b), 414, 494B

Migration Regulations 1994, reg.4.31

Cases Cited:
Armstrong v Great Southern Gold Mining Co NL (1911) 12 CLR 383
Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161
Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324
H v Minister for Immigration and Multicultural Affairs [2001] FCA 906
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003) FCAFC 311

Applicant:

DZAFH

First respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

DNG 3 of 2015

Judgment of:

Judge Jarrett

Hearing date:

18 November 2015

Date of Last Submission:

18 November 2015

Delivered at:

Brisbane

Delivered on:

2 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Reading

Solicitors for the Applicant:

Holding Redlich Lawyers

Counsel for the First Respondent:

Mr S Lee

Solicitors for the First Respondent:

Australian Government Solicitor

The Second Respondent entered a submitting appearance.

ORDERS

The Further Amended Application filed on 31 July, 2015 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 3 of 2015

DZAFH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In H v Minister for Immigration and Multicultural Affairs [2001] FCA 906 Wilcox J said:
[30] [This] case points up the potential for injustice that is inherent in legislation that fixes a short time for taking a procedural step without conferring on anybody a discretion to extend that time. I do not criticize the fixing of a short time for filing an application for RRT review of a delegate’s decision, even a time as short as seven working days. It is important that everybody concerned with refugee applications acts with despatch. The problem arises out of the inflexibility of the prescribed rules. They make no allowance for the possibility of delay for reasons outside the control of an applicant. That possibility is not confined to persons in immigration detention, but it seems especially acute in relation to them. Detainees are in the hands of other people in relation to communication with the outside world, including with migration agents and the Refugee Review Tribunal. The evidence in this case shows that…

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: [2017] FCCA 387
Decision Date: 2 March 2017

CaseChat Overview and Summary

DZAFH (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed on review by the Administrative Appeals Tribunal. The applicant then sought to challenge the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the likelihood of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in relevant case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and whether it had adequately considered the evidence presented by the applicant in relation to the risk of harm.

Judge Jarrett found that the Tribunal had made a jurisdictional error. The Court reasoned that the Tribunal had failed to properly engage with the applicant's evidence and arguments concerning the formation and recognition of the alleged particular social group within their country of origin. The Tribunal's reasoning was found to be deficient in its analysis of whether the group met the criteria of being "socially visible" and whether its members faced a real chance of persecution. The Court applied the principles from *Applicant A v Minister for Immigration and Ethnic Affairs* and *K v Minister for Immigration and Multicultural Affairs* regarding the assessment of particular social groups.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders