ACM17 v Minister for Immigration - [2020] FCCA 1056

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACM17 v MINISTER FOR IMMIGRATION

[2020] FCCA 1056

Catchwords:
MIGRATION – Application for review of decision of the Minister’s delegate (the delegate) – whether the delegate failed to consider a claim – whether the delegate erred by finding that the applicant was an excluded fast track review applicant – grounds not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 57, 476

Act Interpretations Act 1901 (Cth), s.15AB

Cases cited:

FMM17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCAFC 20

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1;

(2018) 75 AAR 551

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743;

(1997) 144 ALR 567; (1997) 48 ALD 481

Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62;

(1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412;

(1989) 21 ALD 139

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55;

(2012) 250 CLR 503; (2012) 87 ALJR 98; (2012) 293 ALR 257;

(2012) 91 ACSR 359; (2012) 84 ATR 1

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1;

(2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223;

(2011) 119 ALD 1

SZOPX v Minister for Immigration and Citizenship [2011] FCA 552

Re Australian Securities Commission v Neil Lucas [1992] FCA 234;

(1992) 36 FCR 165; (1992)108 ALR 521; (1992) 7 ACSR 676;

(1992) 27 ALD 67

Sager v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311

FMM17 v Minister for Immigration [2019] FCCA 1500

Applicant:

ACM17

Respondent:

MINISTER FOR IMMIGRATION,

CITIZENSHIP, MIGRANT SERVICES

AND MULTICULTURAL AFFAIRS

File Number:

SYG 50 of 2017

Judgment of:

Judge Nicholls

Hearing date:

15 April 2020

Date of Last Submission:

15 April 2020

Delivered at:

Sydney

Delivered on:

6 May 2020

REPRESENTATION

Counsel for the Applicant:	Mr G. Foster
Solicitors for the Applicant:	Sentil Solicitor

Counsel for the Respondent:

Ms K. Hooper

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application made on 9 January 2017, and as amended, is dismissed.
The applicant pay the respondent’s costs set in the amount of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 50 of 2017

ACM17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 January 2017, and amended on 26 July 2017, and further amended on 15 April 2020, seeking review of the decision of the Minister’s delegate (“the delegate”) made on 13 December 2016, which refused the grant of a Safe Haven Enterprise…

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 ACM17 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: [2020] FCCA 1056
Decision Date: 6 May 2020

CaseChat Overview and Summary

The applicant, ACM17, sought judicial review of a decision made by the Minister's delegate concerning their application. The core of the dispute revolved around whether the delegate had adequately considered a specific claim made by the applicant and whether the delegate had erred in classifying the applicant as an "excluded fast track review applicant." The matter was heard before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were: first, whether the delegate failed to consider a claim made by the applicant as required by law; and second, whether the delegate's finding that the applicant was an excluded fast track review applicant was legally sound. These issues were central to determining the lawfulness of the delegate's decision.

Judge Nicholls found that the grounds of review were not made out. The Court's reasoning, based on the evidence before it, indicated that the delegate had properly considered the relevant claims and had not erred in their classification of the applicant. Consequently, the application for judicial review was dismissed.

Orders