Abbas v Minister for Immigration - [2014] FCCA 2628

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBAS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2628

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal not to grant applicant a Student (Temporary) (Class TU) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360A, 362B, 379A(5)

Migration Regulations 1994 (Cth), cl.572.231 of Sch.2

Kaur & Anor v Minister for Immigration and Border Protection & Anor (2014) 141 ALD 619
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51
SZBZO v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 494
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251

Applicant:

TAYAB ABBAS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 140 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

15 October 2014

Delivered at:

Sydney

Delivered on:

21 November 2014

REPRESENTATION

The Applicant:

The Applicant appeared in person with an Urdu interpreter.

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The application filed on 20 January 2014 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 140 of 2014

TAYAB ABBAS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking review of a decision of the Migration Review Tribunal (the “Tribunal”) made on 19 December 2013, affirming the decision of a delegate of the first respondent to refuse the applicant a Student (Temporary) (Class TU) visa.
The solicitors for the first respondent, the Minister of Immigration and Border Protection (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. At the final hearing the Minister’s legal representative filed and read in Court the Affidavit of B. Ruddy affirmed on 14 October 2014 (the “Ruddy Affidavit”).
The applicant was represented by MAS Law from the time the application was filed, being 20 January 2014, to 2 October 2014 when MAS Law withdrew its representation.
The applicant was granted leave to file and serve an amended application and any evidence they wished to rely upon on or before 18 March 2014. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the date of the hearing. The applicant did not file any documents prior to the hearing on 15 October 2014.
At the hearing, due to the circumstances…

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: [2014] FCCA 2628
Decision Date: 21 November 2014

CaseChat Overview and Summary

Abbas (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a protection visa. The applicant, who was of Hazara ethnicity, claimed to fear persecution in Afghanistan due to his ethnicity and his alleged involvement with a political organisation. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not face persecution if returned to Afghanistan.

The primary legal issue before Lloyd-Jones J was whether the delegate's decision was affected by jurisdictional error. Specifically, the court was required to determine whether the delegate had failed to adequately consider the applicant's claims of persecution based on his ethnicity and political affiliation, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The applicant also contended that the delegate had failed to properly assess the risk of harm from non-state actors in Afghanistan.

Lloyd-Jones J found that the delegate had failed to adequately consider the applicant's claims regarding persecution due to his Hazara ethnicity. The delegate's reasons did not sufficiently engage with the evidence presented by the applicant concerning the general risk of harm faced by Hazaras in Afghanistan. Furthermore, the delegate's adverse credibility findings were found to be based on an incomplete and unbalanced assessment of the evidence, leading to a failure to properly consider the applicant's subjective fears. The court applied the principles of administrative law, including the requirement for decision-makers to provide adequate reasons and to conduct a fair and balanced assessment of the evidence.

The application for judicial review was granted, and the delegate's decision was set aside. The matter was remitted to the Minister for redetermination according to law.

Orders