DPI17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] FCAFC 43
• Date: 15 March 2019

FEDERAL COURT OF AUSTRALIA

DPI17 v Minister for Home Affairs [2019] FCAFC 43

Appeal from:	DPI17 v Minister for Home Affairs [2018] FCCA 2039
File number:	VID 976 of 2018
Judges:	GRIFFITHS, MORTIMER AND STEWARD JJ
Date of judgment:	15 March 2019
Catchwords:	MIGRATION – appeal from judgment of Federal Circuit Court affirming decision of Immigration Assessment Authority (IAA) to refuse protection visa – where delegate assured the appellant during interview that discrepancies in the appellant’s statements were “not major” – where delegate’s assessment of demeanour at the interview was part of the reason she accepted the appellant had been sexually assaulted and tortured – where subsequently the IAA relied upon inconsistencies in a statutory declaration provided by the appellant and the record of interview to conclude that the sexual assaults did not take place – whether IAA erred by unreasonably failing to consider whether to exercise discretion under s 473DC of the Migration Act 1958 (Cth) ; ADMINISTRATIVE LAW – the relationship between procedural fairness and legal unreasonableness – materiality of error in giving rise to jurisdictional error
Legislation:	Migration Act 1958 (Cth) ss 46A, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473FA, 473GA, 473GB
Cases cited:	Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 ASB17 v Minister for Home Affairs [2019] FCAFC 38 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 DPI17 v Minister for Immigration and Border Protection [2018] FCCA 2039 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 House v The King (1936) 55 CLR 499 Fox v Percy [2003] HCA 22; 214 CLR 118 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 Kruse v Johnson [1898] 2 QB 91 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 353 ALR 408 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Muin v Refugee Review Tribunal [2002] HCA 30; 68 ALD 257 Nobarani v Mariconte [2018] HCA 36; 359 ALR 31 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203
Date of hearing:	14 February 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	128
Counsel for the Appellant:	Mr A Aleksov (Pro Bono)
Counsel for the Respondents:	Mr R Knowles
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

		VID 976 of 2018
BETWEEN:	DPI17 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES:	GRIFFITHS, MORTIMER AND STEWARD JJ
DATE OF ORDER:	15 March 2019

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders dated 26 July 2018 of the Federal Circuit Court of Australia be set aside.

3. In lieu thereof:

(a) the second respondent’s decision dated 20 July 2017 be set aside;

(b) the referral be remitted to the second respondent for reconsideration according to law; and

(c) the first respondent pay the appellant’s costs of the proceeding below, to be fixed by way of lump sum.

4. The first respondent pay the appellant’s costs of the appeal, to be fixed by way of lump sum.

THE COURT DIRECTS THAT:

5. Within 7 days, the parties file any agreed proposed minute of orders fixing lumps sums in relation to the costs referred to above.

6. In the absence of any such agreement, within 14 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note in relation to the proceedings below and the appeal.

7. Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note in relation to both the proceedings below and the appeal.

8. In the absence of any agreement having been reached within a further 7 days, the matter of appropriate lump sum figures for the appellant’s costs as referred to above be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

GRIFFITHS AND STEWARD JJ:

1 This appeal is from orders and a judgment dated 26 July 2018 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as DPI17 v Minister for Immigration and Border Protection [2018] FCCA 2039. The FCCA dismissed the now appellant’s application for judicial review of a decision dated 20 July 2017 of the Immigration Assessment Authority (IAA). The IAA affirmed a decision dated 22 November 2016 by the Minister’s delegate to refuse the appellant a Safe Haven Enterprise visa (SHEV).

2 The single issue in the appeal is whether the primary judge erred in not accepting the appellant’s contention that the IAA had acted unreasonably by failing to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (the Act) to obtain information from the appellant. For the reasons that follow, the appeal should be allowed.

Summary of background facts

3 The primary judge summarised the background facts at [6]-[26], [35]-[36] and [40]-[42]. The appellant does not challenge the correctness of the facts found by the primary judge, but does contest some of the inferences drawn by his Honour.

4 Focussing on the background facts which are directly relevant to the appeal, they may be summarised as follows. The appellant is from Sri Lanka. He is of Tamil ethnicity and Hindu religion. He left Sri Lanka in August 2012 and arrived in Australia on 10 September 2012. On 24 October 2013, he applied for a protection visa. One of the documents provided in support of that application was a statutory declaration dated 23 September 2013 sworn by the appellant.

5 As an unauthorised maritime arrival, the appellant was prevented by s 46A(1)...