DZF17 v Minister for Immigration - [2018] FCCA 3619

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZF17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3619

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether untranslated evidence is “new information” – whether Authority failed to consider entirety of evidence – whether Authority unreasonably failed to exercise s.473DC(1) of the Migration Act 1958 (Cth) – whether the Authority misinterpreted “serious harm” and “significant harm” – whether Authority failed to independently address sub-s.36(2)(aa) of the Act – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473CC, 473DC, pt.7AA

Cases cited:

ABJ17 v Minister for Immigration & Border Protection [2018] FCA 950

Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59
DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12

Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
MZYXS v Minister for Immigration & Citizenship [2013] FCA 614
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Smith v R (2001) 206 CLR 650
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125
Volcafe Ltd v Compania Sud Americana De Vapores SA [2018] UKSC 61

Other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967)

Applicant:

DZF17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2768 of 2017

Judgment of:

Judge Smith

Hearing date:

8 November 2018

Date of Last Submission:

8 November 2018

Delivered at:

Sydney

Delivered on:

19 December 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones, Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Ms D Watson, Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2768 of 2017

DZF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 8 August 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa, a type of protection visa, on 15 June 2016.

Background

The applicant is a Shia Muslim citizen of Iraq who arrived in Australia at Christmas Island on 23 June 2013 as an unauthorised maritime arrival. On 10 January 2017 the applicant applied for a protection visa.
The substance of the applicant’s claims was that his employment as an intelligence officer caused him to live in constant anxiety that he would be harmed as he believed many people knew of this employment. The specific incidents the applicant relied on were summarised by the delegate:
…
• From 2004, he commenced employment with the Intelligence Office, Department of Justice in Safwan,…

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: [2018] FCCA 3619
Decision Date: 19 December 2018

CaseChat Overview and Summary

The applicant, DZF17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of a protection visa. The dispute centred on whether the IAA had adequately considered all the evidence before it and whether it had correctly applied the relevant provisions of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included whether untranslated evidence constituted "new information" that the IAA was obliged to consider, whether the IAA had failed to consider the entirety of the evidence presented, and whether the IAA had unreasonably failed to exercise its powers under s 473DC(1) of the *Migration Act*. Furthermore, the court had to assess whether the IAA had misinterpreted the terms "serious harm" and "significant harm" as defined in the Act, and whether it had failed to independently address the requirements of sub-s 36(2)(aa) of the Act.

Justice Smith found that there was no jurisdictional error on the part of the IAA. The court reasoned that untranslated evidence, in the circumstances of this case, did not automatically qualify as "new information" requiring specific consideration under the relevant provisions. The IAA's decision was found to have adequately addressed the evidence before it, and its interpretation of "serious harm" and "significant harm" was consistent with the statutory framework. The court concluded that the IAA had not unreasonably failed to exercise its powers under s 473DC(1) and had properly considered the applicant's claims.

Consequently, the application for judicial review was dismissed.

Orders