DAS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1398

DAS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1398

The Federal Circuit Court Judge deprived the self-represented appellant of a fair hearing by conveying, broadly, that no new material could be received in the judicial review and by intervening before the appellant could identify or explain the further material or submissions he wished to add. That misconception effectively misled and stifled the appellant, denying him the hearing to which he was entitled. Grounds concerning the IAA's treatment of mental health material and complementary protection were not made out, but the fair hearing error required the appeal to be allowed and the judicial review application remitted for rehearing by another Judge.

Jurisdiction
Australia
Judgment Date
02 September 2019
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed on Ground 1; Grounds 2 and 3 failed; application for judicial review remitted to the Federal Circuit Court for re-hearing by another Judge in accordance with law.
Legal Topics
['safe Haven Enterprise Visa' 'immigration Assessment Authority' 'fair Hearing' 'self Represented Litigant' 'interpreter' 'new Material in Judicial Review' 'complementary Protection' 'jurisdictional Error']
['migration' 'administrative Law' 'judicial Review'] ['safe Haven Enterprise Visa' 'immigration Assessment Authority' 'fair Hearing' 'self Represented Litigant' 'interpreter' 'new Material in Judicial Review' 'complementary Protection' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the appellant received a fair hearing in the Federal Circuit Court.' "Whether the Immigration Assessment Authority ignored relevant material concerning the appellant's mental health issues and inability to recall events." 'Whether the Minister or Immigration Assessment Authority failed to consider the complementary protection criterion under the Migration Act 1958 (Cth).']

Ratio Decidendi

The Federal Circuit Court Judge deprived the self-represented appellant of a fair hearing by conveying, broadly, that no new material could be received in the judicial review and by intervening before the appellant could identify or explain the further material or submissions he wished to add. That misconception effectively misled and stifled the appellant, denying him the hearing to which he was entitled. Grounds concerning the IAA's treatment of mental health material and complementary protection were not made out, but the fair hearing error required the appeal to be allowed and the judicial review application remitted for rehearing by another Judge.

Court Disposition

Appeal allowed on Ground 1; Grounds 2 and 3 failed; application for judicial review remitted to the Federal Circuit Court for re-hearing by another Judge in accordance with law.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court made on 30 January 2019 be set aside.' "The appellant's application for judicial review be remitted to the Federal Circuit Court for re-hearing by another Judge in accordance with law."]