ABH16 v Minister for Immigration - [2019] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABH16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 543

Catchwords:
MIGRATION – Protection visa application – claims to fear harm from unnamed persons from whom applicant claimed to have borrowed money – delay in making application – ground of review unparticularised and devoid of merit – allegations of fraud abandoned – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 36, 98, 474, 476

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Gill v the Minister for Immigration and Border Protection (2016) 248 FCR 398
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

First Applicant:

ABH16

Second Applicant:

ABI16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 37 of 2016

Judgment of:

Judge A Kelly

Hearing date:

18 May 2018

Date of Last Submission:

18 May 2018

Orders pronounced:

18 May 2018

Delivered at:

Melbourne

Delivered on:

8 March 2019

REPRESENTATION

The Applicants appearing in person

Solicitor for the Respondent:

Ms Wilde

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application filed on 8 January 2016 be dismissed.
The Applicants pay the First Respondent’s costs fixed at $7,627.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 37 of 2016

ABH16

First Applicant

ABI16

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 8 January 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 December 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (class XA) visa pursuant to par 65(1)(a) of the Migration Act 1958 (Cth) (Act). These reasons explain why orders were made dismissing their applications for judicial review.
The applicants are Malaysian nationals aged 43 and 38 years respectively who are married and first travelled to Australia in 2013.
They arrived in Australia as holders of electronic travel authority visas.
Following the expiry of their visas, the applicants lodged an application for Protection visas. The second applicant relied upon the claims for protection as made by her husband, the first applicant.
At the time of completing the protection visa applications, the first applicant’s claims for protection comprised the following:
a)he had given a guarantee for a friend…

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: [2019] FCCA 543
Decision Date: 8 March 2019

CaseChat Overview and Summary

The applicant, ABH16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the lawfulness of the Minister's decision to refuse to grant the applicant a visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision to refuse the visa.

Judge A Kelly found that the Minister's delegate had failed to adequately consider the applicant's submissions regarding their genuine temporary entrant status. The delegate's decision relied heavily on a single piece of information without properly weighing it against other material provided by the applicant. This failure to engage with the entirety of the applicant's case constituted a jurisdictional error. The Court therefore quashed the decision of the Minister.

Orders