DZI16 v Minister for Immigration - [2018] FCCA 70

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZI16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 70

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant fearing harm in Bangladesh as a homosexual and because of involvement in a tax fraud scheme in Australia – applicant’s homosexuality claim not believed and other fears not well-founded – whether the Tribunal hearing was procedurally unfair due to the refusal of a six week adjournment considered.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 189, 422B, 424A, 425, 425A, 438, 500, 501

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration v SZFML (2006) 154 FCR 572
Minister for Immigration v SZQRB (2013) 210 FCR 505
MZYXS v Minister for Immigration [2013] FCA 614
Ogawa v Minister for Immigration (2011) 199 FCR 51
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
SZDQO v Minister for Immigration (2005) 144 FCR 251

Applicant:

DZI16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 475 of 2017

Judgment of:

Judge Driver

Hearing date:

12 December 2017, via videolink to Perth

Date of Last Submission:

12 January 2018

Delivered at:

Sydney

Delivered on:

20 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Ladhams of Australian Government Solicitor

ORDERS

The application filed on 5 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 475 of 2017

DZI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 5 December 2017.
The applicant is a citizen of Bangladesh who first arrived in Australia on 12 April 2009 as the holder of a subclass 572 (Class TU) student visa.[1]
[1] Court Book (CB) 100
Since first arriving in Australia, the applicant has twice returned to Bangladesh, in July-August 2011 and in February-March 2013.[2]
[2] CB 101
The applicant was granted a subclass 573 student visa on 7 February 2013 which was valid until 15 March 2014.[3]
[3] CB 101
On 22 July 2013 the applicant was charged with 58 counts of fraud and identity charges relating to the lodgement of fraudulent tax returns. He was subsequently convicted, and on 4 July 2014 was sentenced to a term of two years imprisonment but with release after 12 months on recognisance of $1,000.[4]
[4] CB 79-94
Around November 2013 the applicant deferred his studies due to his legal issues, and on 12 March 2014 he lodged a further student visa application which was refused on 20 January 2015.[5]

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 70
Decision Date: 20 February 2018

CaseChat Overview and Summary

The applicant, DZI16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the applicant's claims of persecution. This involved an assessment of whether the delegate had adequately considered the evidence presented by the applicant and whether the delegate's findings of fact were supported by that evidence, particularly concerning the applicant's fear of harm if returned to their country of origin.

Judge Driver's reasoning focused on the principles of administrative law, including the requirement for decision-makers to undertake a proper evaluation of the evidence. The Court examined whether the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims. The Court applied the established legal principles governing the assessment of protection visa applications, which require a genuine assessment of the applicant's fear of persecution based on the available evidence and the criteria set out in the *Migration Act 1958* (Cth) and associated regulations.

The Court found that the delegate had failed to properly consider crucial aspects of the applicant's evidence, leading to an erroneous conclusion. Accordingly, Judge Driver set aside the delegate's decision and remitted the application for reconsideration according to law.

Orders