DZB16 v Minister for Immigration - [2016] FCCA 3336

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZB16 v MINISTER FOR IMMIGRATION

[2016] FCCA 3336

Catchwords:
MIGRATION – Ex parte telephone application for injunctive relief to prevent applicant’s removal from Australia – whether there is a prima facie case or serious question to be tried identified by the applicant’s application – application for injunctive relief refused.

Legislation:
Migration Act 1958 (Cth), ss.5F, 417, 476, 477
Migration Regulations 1994 (Cth), reg.1.15A

Cases Cited:
M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Applicant:

DZB16

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 3631 of 2016

Judgment of:

Judge Street

Hearing date:

19 December 2016

Date of Last Submission:

19 December 2016

Delivered at:

Sydney

Delivered on:

19 December 2016

REPRESENTATION

Applicant:

In person via telephone

No appearance by or on behalf of the respondent.

ORDERS

Leave be granted to the applicant to file in Court and to move on ex parte the application of the applicant and supporting unsworn affidavit by Alison Mary Battisson dated 19 December 2016.
The applicant be identified by the pseudonym ‘DZB16’.
A copy of these Orders be sent to the respondent.
The ex parte application for injunctive relief is refused.
The proceeding is listed for directions before this Court on Wednesday, 21 December 2016, at 2:15pm before me.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3631 of 2016

DZB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an application for injunctive relief to restrain the respondent from removing the applicant from Australia.
The applicant unsuccessfully sought review of a refusal of a permanent residence visa application by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal dismissed that application and affirmed the decision under review. The applicant was notified of that decision on 23 August 2016. The applicant thereafter unsuccessfully sought Ministerial Intervention pursuant to s.417 of the Act. On 8 December 2016, the applicant was notified of the respondent’s intention to remove the applicant from Australia.
Late in the afternoon of 19 December 2016, a Ms Battisson, who is not the applicant’s lawyer, sought to make an application for an ex parte injunctive order on behalf of the applicant. The Court conveyed to Ms Battisson that it would only permit the applicant, or a legal representative of the applicant who was a qualified and admitted lawyer, to make an application for an ex parte injunction. The Court provided contact details so that the applicant could take steps to contact the Court. At approximately 6:30pm on 19 December 2016, the applicant made a telephone application from the detention centre, seeking an ex parte injunction in relation to his removal from Australia.
The applicant explained that there had been an issue as to whether he…

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: [2016] FCCA 3336
Decision Date: 19 December 2016

CaseChat Overview and Summary

DZB16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, a citizen of Afghanistan, claimed to have suffered persecution in his home country due to his ethnicity and political opinions. The Minister's delegate had refused the application, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa application was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess all relevant evidence, including expert reports and country information, when making the adverse credibility findings. The applicant contended that this failure amounted to an error in the exercise of the delegate's statutory power, rendering the decision invalid.

Judge Street found that the delegate had indeed failed to adequately consider crucial evidence presented by the applicant. The delegate's assessment of the applicant's credibility was found to be superficial and did not engage with the detailed explanations provided by the applicant regarding his experiences. The Court reiterated the principle that a delegate must genuinely consider all evidence before them and provide reasons that reflect this consideration. The failure to do so constituted a jurisdictional error.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders