DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 11 June 2021
• Neutral Citation: [2021] FCA 612
• Court: Federal Court
• Date: 11 June 2021

Federal Court of Australia

DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612

Appeal from:	DYI16 v Minister for Immigration & Anor [2020] FCCA 1956
File number(s):	VID 541 of 2020
Judgment of:	WHEELAHAN J
Date of judgment:	11 June 2021
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister to refuse the appellant a Protection (subclass 866) visa – where leave sought to raise new grounds on appeal – leave to raise new grounds on appeal refused – appeal dismissed with costs. ; MIGRATION – where the Tribunal gave no weight to submissions made by the appellant’s migration agent and solicitor regarding communications with the appellant’s former colleague in Pakistan – whether the Tribunal had a duty to inquire – whether the Tribunal fell into jurisdictional error by failing to make independent inquiries of the appellant’s former colleague regarding the content of the submissions – no obligation to inquire – no jurisdictional error. ; MIGRATION – where the Tribunal received documents containing information, of which it gave a precis to the appellant under s 424A(1) of the Migration Act 1958 (Cth) with an invitation to comment or respond – whether the Tribunal fell into jurisdictional error by contravening s 424A(1) – whether alternatively the Tribunal acted unreasonably by failing to give the appellant copies of the documents the subject of the s 424A invitation and so fell into jurisdictional error – no contravention of s 424A(1) – no legal unreasonableness – no jurisdictional errors.
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(g) Evidence Act 1995 (Cth) s 136 Migration Act 1958 (Cth) ss 5J(1)(c), 36, 36(2)(aa), 36(2A), 36(2B), 57(2), 119 to 121, 414(1), 415, 415(1), 420(b), 422B(3), 423(1), 423A, 424, 424(1), 424A, 424A(1), (2), (2A) and (3), 424AA, 425, 426(1), 427(1), (3) and (4), 428(2)(a), 429A, 438, 438(1), 473DC, 476, 476A
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 BXT17 v Minister for Home Affairs [2021] FCAFC 9 Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90 CGA15 v Minister for Home Affairs and Another [2019] FCAFC 46; 268 FCR 362 Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 882; 39 FCR 458 Fualau v Minister for Home Affairs [2020] FCAFC 11 Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 27 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 MZZGB v Minister for Immigration and Citizenship [2014] FCA 1052 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; 232 FCR 282 SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; 184 FCR 505 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 Wang v Minister for Immigration and Citizenship [2007] FCA 488 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 ; Australia, Senate, Migration Amendment (Review Provisions) Bill 2006, Explanatory Memorandum, Item 18
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	84
Date of hearing:	25 May 2021
Counsel for the Appellant:	Mr J Murphy
Solicitor for the Appellant:	Carina Ford Immigration Lawyers
Counsel for the Respondents:	Mr C McDermott
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 541 of 2020
BETWEEN:	DYI16 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	11 June 2021

THE COURT ORDERS THAT:

1. Leave be granted to the appellant to file an amended notice of appeal.

2. Leave be granted to the appellant to tender:

   1. the transcript marked as annexure CF-1 to the affidavit of Carina Ford dated 17 May 2021; and

   2. the document marked as annexure CF-2 to the affidavit of Carina Ford dated 17 May 2021.

3. The appeal be dismissed.

4. The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellant appeals a decision of the Federal Circuit Court of Australia which dismissed his application to that court under its jurisdiction conferred by s 476 of the Migration Act 1958 (Cth)....