ABT17 v Minister for Immigration - [2018] FCCA 658

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABT17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 658

Catchwords:
MIGRATION – Application for protection visa – review of decision of the Immigration Assessment Authority – whether the Authority failed to consider connections the applicant’s brother may be “perceived” to have – whether the Authority erred by considering information made in support of an invalid visa application – whether the Authority’s decision was legally unreasonable – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Application to amend application and seek to rely on an additional ground – late application without any evidence to explain failure to comply with Court orders – leave to amend application refused.

Legislation:

Migration Act 1958 (Cth), ss.47, 473DD

Cases cited:

BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445

DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2

Applicant:

ABT17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 35 of 2017

Judgment of:

Judge Smith

Hearing date:

6 March 2018

Date of Last Submission:

6 March 2018

Delivered at:

Sydney

Delivered on:

23 March 2018

REPRESENTATION

Solicitors for the Applicant:

Stephen Hodges, Hodges Legal

Counsel for the First Respondent:

Mr C Lenehan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Leave to amend the application be refused.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 35 of 2017

ABT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 16 December 2016. The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
At the hearing of the matter the applicant effectively abandoned all of the grounds in his application and sought leave to raise a new argument. No explanation was given as to why the argument had not been raised before or why the order to file an amended application had not been complied with. The application was opposed.
In BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445, I considered and rejected a late application for an amendment made in similar circumstances. I said, relevantly:
6.There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7.The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to…

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.

Keep reading for free

Create a free CaseChat account to read ABT17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 658
Decision Date: 23 March 2018

CaseChat Overview and Summary

The applicant, ABT17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The dispute centred on whether the IAA had adequately considered certain aspects of the applicant's circumstances and whether its decision was legally unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia by Judge Smith.

The primary legal issues before the Court were whether the IAA had failed to consider the potential "perceived" connections of the applicant's brother, whether the IAA erred by considering information that was part of an invalid visa application, and whether the IAA's ultimate decision was legally unreasonable. Additionally, the Court considered an application by the applicant to amend their application and introduce a new ground, which was made late and without evidence explaining the failure to comply with prior court orders.

Judge Smith found that there was no jurisdictional error on the part of the IAA. The Court reasoned that the IAA had properly considered the relevant information before it and that its decision was not legally unreasonable. Regarding the application to amend, leave was refused due to the applicant's failure to provide evidence explaining their non-compliance with court orders. Consequently, the application for judicial review was dismissed.

Orders