DZV18 v Minister for Home Affairs - [2020] FCCA 77

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZV18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 77

Catchwords:
MIGRATION – Unreasonableness – whether the Authority directed itself incorrectly – whether the Authority relied on country information so unreliable that the Authority’s reliance upon that information is unreasonable – whether the Authority made reasoning errors in determining whether the applicant could subsist in Afghanistan.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 476(1)

Cases cited:

CRI026 v The Republic of Nauru [2018] HCA 19

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

DZV18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 413 of 2018

Judgment of:

Judge McNab

Hearing date:

12 September 2019

Date of Last Submission:

12 September 2019

Delivered at:

Melbourne

Delivered on:

24 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Draper

Solicitors for the Applicant:

D’Angelo Legal

Counsel for the Respondents:

Ms Tattersall

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application filed 31 July 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 413 of 2018

DZV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 31 July 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 5 July 2018. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘the SHEV visa’).
This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’) and was heard on 12 September 2019.
For the reasons which follow, I have concluded that the application should be dismissed.

Background

The applicant is a male Afghani of Hazara ethnicity and of Shia religion. He arrived in Australia as an Unauthorised Maritime Arrival on 20 June 2013.
On 8 August 2016, the applicant was invited to apply for either a Temporary Protection (subclass 785) Visa or a SHEV visa.
On 12 May 2017, the applicant applied for the SHEV visa. This application was acknowledged on 17 May 2017.
On 7 August 2017, the applicant was invited to attend an interview to discuss the application and present evidence (‘the SHEV interview’). A second letter was sent on 17 August 2017 restating that the SHEV interview was scheduled on 21 August 2017.
On 18 August 2017, a further letter was sent rescheduling the SHEV interview to 7 September 2017.
On 29 August 2017, the applicant’s migration agent sent post-interview submissions in support of the applicant’s claims for protection. It appears that the applicant did attend the SHEV interview, though the date of the SHEV interview is not apparent from the Court Book.
On 14 September 2017, the applicant was notified…

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.

Continue reading DZV18 v Minister for Home Affairs

Details

AGLC: DZV18 v Minister for Home Affairs [2020] FCCA 77
Case: [2020] FCCA 77
Decision Date: 24 January 2020

CaseChat Overview and Summary

The applicant, DZV18, sought judicial review of a decision made by the Minister for Home Affairs (the respondent) to refuse to grant a protection visa. The dispute concerned the respondent's assessment of the applicant's claims regarding their fear of persecution and their ability to subsist in Afghanistan. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the respondent's decision was affected by unreasonableness. Specifically, the court considered whether the respondent had directed itself incorrectly in its assessment, whether it had relied on country information that was so unreliable as to render its reliance unreasonable, and whether it had made reasoning errors in its determination of the applicant's capacity to subsist in Afghanistan.

Judge McNab found that the respondent had failed to adequately consider the applicant's specific circumstances and the evidence provided. The court held that the respondent's reliance on certain country information, without proper critical assessment of its reliability in the context of the applicant's claims, amounted to an error of unreasonableness. Furthermore, the court identified reasoning errors in the assessment of the applicant's ability to subsist in Afghanistan, concluding that the decision was not supported by a logical and rational process. The court ordered that the decision of the respondent be set aside and remitted to the respondent for reconsideration according to law.

Orders