Abb17 v Minister for Immigration - [2018] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABB17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1466

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to the applicant a Protection visa – applicant requires a 15 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – Minister for Immigration did not oppose the making of an order for an extension of time under s.477(2) of the Migration Act 1958 (Cth) – extension of time granted – applicant did not attend scheduled hearing before Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal to exercise its legal and discretionary entitlement to dismiss the application for review without any further consideration under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.414, 425, 425A, 426A, 426B, 441A, 441C, 427
Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323

Applicant:

ABB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 24 of 2017

Judgment of:

Judge Dowdy

Hearing date:

4 August 2017

Delivered at:

Sydney

Delivered on:

8 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr T. Hillyard

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

Grant leave to the Applicant to amend the Application filed in this Court on 5 January 2017 so as to substitute the date of “16 November 2016” for “1 December 2016” to the intent of identifying that the decision of the Administrative Appeals Tribunal, which he seeks to quash and have redetermined, is its decision of 16 November 2016 under s.426A(1A)(b) of the Migration Act 1958 (Cth).
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the Applicant to file his Application in this Court seeking relief under s.476 in relation to the decision of the Administrative Appeals Tribunal dated 16 November 2016 to dismiss his application to the Tribunal under s.426A(1A)(b) be extended up to 5 January 2017.
The Application filed in this Court on 5 January 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 24 of 2017

ABB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Malaysia of Chinese ethnicity aged 36…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1466
Decision Date: 8 June 2018

CaseChat Overview and Summary

In *Abb17 v Minister for Immigration*, the applicant, Abb17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant Abb17 a protection visa. The matter was heard in the Federal Court of Australia before Dowdy J.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Abb17's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Dowdy J found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court reasoned that a failure to properly engage with the evidence and the specific circumstances of the applicant's claims constituted a failure to exercise the power conferred by the relevant legislation, leading to jurisdictional error. The Court applied principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper consideration of all relevant material before reaching a conclusion.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders