DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362

Federal Court of Australia

DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 Appeal from: Application for extension of time: DBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 137

File number: WAD 121 of 2022

Judgment of: FEUTRILL J

Date of judgment: 21 April 2023

Catchwords: MIGRATION – application for extension of time – appeal from decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal refusing the grant of a Safe Haven Enterprise visa – where applicant fears return to Bangladesh due to his conversion from Islam to Christianity while in Australia – failure to exercise power to take evidence from an independent witness in accordance with a visa applicant's wishes – failure to take into account relevant considerations – no consideration of whether oral evidence could affect findings of credibility of visa applicant's claims or provide factual foundation for reasonable belief of genuine conversion to Christianity or provide evidence additional to that before a previous Tribunal – no consideration of absence of undue delay or impracticality in taking oral evidence – no consideration of Tribunal's duty to reach the correct and preferable decision at the time the decision is made – absence of intelligible justification in Tribunal's reasons – failure to take evidence from independent witness legally unreasonable – appeal allowed – Tribunal decision quashed – writs of certiorari and mandamus issued

Legislation: Constitution ss 75(v), 77(i) Administrative Appeals Tribunal Act 1975 (Cth) s 24Z, 25, 25(4A), 42, 43C, Pt IV Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 25(1AA)(a) Migration Act 1958 (Cth) ss 5H - 5LA, 9, 23, 29, 35A, 35A(3B), 36, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 36(2B), 357A(1), 361(3), 409(2), 411(1), 412, 414, 416, 417, 420, 422B(1), 422B(2), 422B(3), 423, 423A, 424, 424A, 424B, 424AA, 424C, 425, 425A, 426, 426(1), 426(2), 426(3), 426A, 426B, 427, 427(1)(a), 428, 429, 429A, 430, 430(1), 430A, 430D, 432, 433, 437, 438, 441A, 474, 476, 476(1), 476A, 499, Div 4, Div 7, Div 7A Federal Court Rules 2011 (Cth) rr 36.01, 36.01(2), 36.03, 36.05, 36.05(3) Migration Regulations 1994 (Cth) Sch 2