DGR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: PERRY J
• Judgment Date: 15 May 2020
• Neutral Citation: [2020] FCA 657
• Date: 15 May 2020

FEDERAL COURT OF AUSTRALIA

DGR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 657

Appeal from:	DGR16 & Ors v Minister for Immigration & Anor (No 2) [2018] FCCA 910
File number:	NSD 723 of 2018
Judge:	PERRY J
Date of judgment:	15 May 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court dismissing application for judicial review of a decision by Administrative Appeals Tribunal (AAT) to affirm delegate’s decision refusing to grant the appellant a protection visa – whether breach of requirement in s 424A, Migration Act, to give particulars of any information which may be the reason for affirming delegate’s decision – where no requirement on Tribunal to give particulars of its subjective appraisal of evidence or thought processes - whether Tribunal’s rejection of the appellant’s claims was legally unreasonable – appeal dismissed ; PRACTICE AND PROCEDURE – application for adjournment refused – where appeal adjourned a number of times in the past for significant mental health issues on the basis of medical evidence – where medical evidence on this occasion did not establish utility of an adjournment – where measures were adopted to facilitate hearing having regard to the appellants’ special circumstances
Legislation:	Migration Act 1958 (Cth) ss 422B, 424AA, 424A
Cases cited:	BSY16 v Minister for Home Affairs [2019] FCA 140 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190
Date of hearing:	11 September 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	58
Solicitor for the First Respondent:	Mr J Pinder of Minter Ellison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		NSD 723 of 2018
BETWEEN:	DGR16 First Appellant ; DGS16 Second Appellant ; DGT16 Third Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	15 May 2020

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The first and second appellants are to pay the costs of the first respondent as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1 INTRODUCTION	[1]
2 APPLICATIONS FOR ADJOURNMENTS	[5]
2.1 Applications for an adjournment prior to 11 September 2019	[5]
2.2 Reasons why the application for an adjournment of the trial on 11 September 2019 was refused	[10]
3 BACKGROUND	[17]
3.1 The application for protection visas and the delegate’s decision	[17]
3.2 The decision of the AAT	[21]
3.3 The Circuit Court’s decision	[22]
4 DISPOSITION OF THE APPEAL	[26]
4.1 The grounds of appeal	[26]
4.2 Was there a breach of the requirement in s 424A to give particulars of any information which may be the reason for affirming the delegate’s decision (Ground 1)?	[28]
4.3 Were findings by the Tribunal unreasonable (Ground 2)?	[40]
4.3.1 The issues	[40]
4.3.2 Relevant principles	[42]
4.3.3 The findings in question were not legally unreasonable	[49]
5 CONCLUSION	[58]

1. INTRODUCTION

1. The appellants are a family from India who applied for protection visas in 2014. The first appellant, the husband, was the primary applicant (Mr [DGR]). He claimed to have been the victim of workplace abuse, fraud and extortion by his subclass 457 visa sponsor and to fear harm from associates of his sponsor if returned to India. Mr [DGR]’s wife and child, the second and third appellants respectively, did not make any protection claims of their own but sought asylum as part of the same family unit.

2. The appellants’ applications for protection visas were refused by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), under s 65 of the Migration Act 1958 (Cth) (the Act). This is an appeal from a decision of the Federal Circuit Court (the Circuit Court) dismissing the appellants’ application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), to affirm the delegate’s decision.

3. The appellants were unrepresented on the appeal. Mrs [DGR] appeared at the hearing of the appeal and made brief oral submissions with the assistance of a NAATI accredited professional interpreter in English and Punjabi and a support person. The Minister filed written submissions in advance of the hearing which were sight-translated for Mrs [DGR] before the start of the hearing.

4. The appeal must be dismissed with costs. While I explain my reasons in detail below, it is helpful briefly to summarise my principal reasons as follows, albeit at the risk of some oversimplification.

1. My reasons for dismissing the appellants’ application for an adjournment of the hearing on 11 September 2019 are set out in detail below. In dismissing the application, I note that the seriousness of Mr [DGR]’s mental illness and his diligence in seeking treatment were not in issue. However, among other things the appeal had been adjourned on a number of occasions already and it was not in the interests of the administration of justice to adjourn it indefinitely.

2. The Circuit Court correctly held that the Tribunal was not required to raise Mr [DGR]’s failure to mention his sexual harassment claims with him at the hearing under s 424A of the Act. This is because the information about those claims did not undermine or deny Mr [DGR]’s claims for protection and because the Tribunal was not required to give particulars of, and an opportunity to Mr [DGR] to respond to, perceived inconsistencies in his evidence.

3. The appellants submitted that it was unreasonable for the Tribunal to place weight on the fact that Mr [DGR] did not know what his sponsor’s motives were in...