DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 902

DPH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 902

The Tribunal considered and tested the appellant's claims about political activity and Facebook posts, gave him an opportunity to respond to its concerns, and made credibility findings that were reasonably open on the evidence. Its erroneous reference to repealed s 91R(3) was immaterial because s 5J(6) required the same approach. The appellant did not establish jurisdictional error by the Tribunal or error by the primary judge.

Jurisdiction
Australia
Judgment Date
04 August 2022
Procedural Posture
Migration Appeal Concerning Judicial Review of Administrative Appeals Tribunal Decision Refusing a Protection Visa / Appeal to the Federal Court of Australia From Orders of the Federal Circuit Court of Australia Dismissing the Appellant's Application for Judicial Review
Outcome
Leave granted to raise the new grounds, but the appeal was dismissed with costs.
Legal Topics
['protection Visa' 'temporary Protection Visa' 'jurisdictional Error' 'credibility Findings' 'fabricated Evidence' 'social Media Political Activity' 'well Founded Fear of Persecution' 'leave to Raise New Grounds on Appeal']
['migration Law' 'administrative Law'] ['protection Visa' 'temporary Protection Visa' 'jurisdictional Error' 'credibility Findings' 'fabricated Evidence' 'social Media Political Activity' 'well Founded Fear of Persecution' 'leave to Raise New Grounds on Appeal']

Case Brief

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Procedural Posture

Migration Appeal Concerning Judicial Review of Administrative Appeals Tribunal Decision Refusing a Protection Visa / Appeal to the Federal Court of Australia From Orders of the Federal Circuit Court of Australia Dismissing the Appellant's Application for Judicial Review

Legal Issues

  1. 1 ["Whether the Tribunal failed to take account of relevant considerations or took account of irrelevant considerations in assessing the appellant's protection claims." "Whether the Tribunal failed to assess the appellant's Facebook posts and political activity or denied him an opportunity to explain his position." "Whether the Tribunal's rejection of the claim that the appellant's mother was harassed in Bangladesh was based on assumption or was reasonably open." "Whether the Tribunal was obliged to verify or disprove the appellant's claims." 'Whether leave should be granted to raise new grounds on appeal.']

Ratio Decidendi

The Tribunal considered and tested the appellant's claims about political activity and Facebook posts, gave him an opportunity to respond to its concerns, and made credibility findings that were reasonably open on the evidence. Its erroneous reference to repealed s 91R(3) was immaterial because s 5J(6) required the same approach. The appellant did not establish jurisdictional error by the Tribunal or error by the primary judge.

Court Disposition

Leave granted to raise the new grounds, but the appeal was dismissed with costs.

Orders

  • ['The first respondent\'s name be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".' 'The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or taxed."]