DZY17 v Minister for Immigration - [2018] FCCA 1987

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZY17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1987

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal –where Applicant filed two applications seeking judicial review of the same decision – where Applicant filed a Notice of Discontinuance in one proceeding – application before the Court is incompetent – to the extent necessary the application to set aside the Notice of Discontinuance is dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.4.03.

Federal Court Rules 2011 (Cth).

Migration Act 1958 (Cth), ss.65, 477, 486D.

Cases cited:

Chen v Monash University [2016] FCAFC 66.

CHD16 v Minister for Immigration & Anor [2017] FCCA 1679.

COB16 & Ors v Minister for Immigration & Anor [2018] FCCA 152.

Khadri v Minister for Immigrationand Border Protection [2014] FCA 91.

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280.

MZXPI v Minister For Immigration & Anor [2008] FMCA 1296.

Singh & Anor v Minister for Immigration & Anor [2017] FCCA 223.

SZKUT v Minister for Immigration & Anor [2008] FMCA 241.

TCWY v Minister for Immigration and Border Protection [2018] FCA 804.

Applicant:

DZY17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1933 of 2017

Judgment of:

Judge Hartnett

Hearing date:

16 July 2018

Delivered at:

Melbourne

Delivered on:

16 July 2018

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Jackson

Solicitors for the First Respondent:

Australian Government Solicitor

THE COURT DECLARES THAT the application filed 5 September 2017 is incompetent.

THE COURT ORDERS THAT:

To the extent necessary, the application to set aside the notice of discontinuance filed 5 September 2017 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1933 of 2017

DZY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Introduction

Before the Court is a purported application filed by the Applicant on

5 September 2017, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 August 2017. By that decision, the Tribunal affirmed an earlier decision of a delegate of the Minister (‘the delegate’) to refuse to grant to the Applicant a protection (Subclass 866) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
This is the Applicant’s second judicial review application in respect of the same proceeding. On 25 August 2017, the Applicant filed an application in the Perth Registry of the Court seeking judicial review of the Tribunal’s decision dated 15 August 2017 in proceedings numbered PEG458/2017.
On 5 September 2017, the Applicant filed a Notice of Discontinuance in proceeding number PEG458/2017. In oral evidence given this day, the Applicant confirmed that she personally filed the Notice of Discontinuance; 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: [2018] FCCA 1987
Decision Date: 16 July 2018

CaseChat Overview and Summary

The applicant, DZY17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including country information and the applicant's personal circumstances, when assessing the risk of persecution. This involved examining whether the delegate had applied the correct legal test for establishing a well-founded fear and whether the delegate's findings of fact were reasonably open to them on the evidence.

Judge Hartnett's reasoning focused on the principles of administrative review. The Court reiterated that the assessment of a protection visa claim requires a careful and holistic evaluation of the applicant's evidence in light of current country information. The delegate must not arbitrarily disregard credible evidence or make findings that are not supported by the material before them. The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had made findings that were not reasonably open on the available information, thereby misapplying the legal test for a well-founded fear.

Consequently, the Court found that the decision of the delegate was affected by jurisdictional error. The application for judicial review was therefore granted, and the matter was remitted to the Minister for redetermination according to law.

Orders