DAB16 v Minister for Home Affairs [2019] FCA 2114

DAB16 v Minister for Home Affairs [2019] FCA 2114

The appeal was dismissed because the Authority's findings about relocation to Lahore were supported by the DFAT Thematic Report, which was capable of being probative material despite not identifying a particular source for every statement. The appellant's attempt to prove on judicial review and appeal that the report was factually wrong was an impermissible attempt at merits review. The Minister bore no evidentiary burden on a factual question that did not legitimately arise on judicial review, and the Authority had in fact considered the appellant's Hazara ethnicity and Shia religion.

Jurisdiction
Australia
Judgment Date
11 December 2019
Procedural Posture
Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of a Migration Decision / Federal Court Appeal
Outcome
Appeal dismissed.
Legal Topics
['judicial Review' 'jurisdictional Error' 'country Information' 'probative Material' 'protection Visa' 'refugee Criterion' 'complementary Protection Criterion' 'relocation Within Receiving Country' 'evidentiary Burden']
['administrative Law' 'migration Law'] ['judicial Review' 'jurisdictional Error' 'country Information' 'probative Material' 'protection Visa' 'refugee Criterion' 'complementary Protection Criterion' 'relocation Within Receiving Country' 'evidentiary Burden']

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Procedural Posture

Appeal From a Judgment of the Federal Circuit Court of Australia Dismissing Judicial Review of a Migration Decision / Federal Court Appeal

Legal Issues

  1. 1 ["Whether the veracity of the DFAT Thematic Report was relevant to the Federal Circuit Court's task on judicial review and what factual findings should have been made." 'Whether the Minister bore an evidentiary burden concerning a critical fact said to underpin the judicial review application.' "Whether the Immigration Assessment Authority failed to have regard to the appellant's Shia religion and Hazara ethnicity when considering relocation to Lahore." "Whether it was open on judicial review or appeal to adduce new evidence to show that a fact on which the Authority's decision was based did not exist." 'Whether reliance on the DFAT Thematic Report involved jurisdictional error because the report was said to be factually incorrect or insufficiently sourced.']

Ratio Decidendi

The appeal was dismissed because the Authority's findings about relocation to Lahore were supported by the DFAT Thematic Report, which was capable of being probative material despite not identifying a particular source for every statement. The appellant's attempt to prove on judicial review and appeal that the report was factually wrong was an impermissible attempt at merits review. The Minister bore no evidentiary burden on a factual question that did not legitimately arise on judicial review, and the Authority had in fact considered the appellant's Hazara ethnicity and Shia religion.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The first respondent's application for costs be adjourned to a date to be fixed." "The issue raised on the Court's motion under s 486F of the Migration Act 1958 (Cth) be set down for hearing at a date to be fixed."]