ACP15 v Minister for Immigration - [2015] FCCA 798

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACP15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 798

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Judiciary Act1903, s.78B
Migration Act 1958, ss.91R(1), 476

Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; (1999) 167 ALR 303; [1999] FCA 1151
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant:

ACP15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 527 of 2015

Judgment of:

Judge Street

Hearing date:

26 March 2015

Date of Last Submission:

26 March 2015

Delivered at:

Sydney

Delivered on:

26 March 2015

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Counsel for the First Respondent:

Ms B. Griffin

ORDERS

The proceedings be summarily dismissed.
The Applicant to pay Respondent’s costs fixed in the sum of $1300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 527 of 2015

ACP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in which the applicant seeks a Constitutional writ in respect of the decision of the Tribunal made on 9 January 2015 affirming the decision not to grant the applicant a Protection (Class XA) visa.
The application identifies:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The matter was listed for 9.30a.m. and was called and there was no appearance. The matter was again called at 10.30a.m. and there was no appearance for the applicant on either occasion.
In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.
The Court has carefully considered the application and the decision and is of the view that the proceedings have no reasonable prospect of success. The grounds are as follows:
Ground 1: Natural Justice-The Fair Hearing Rule
1. The Second Respondent breached the rules of natural justice and procedural fairness in connection with the making of the decision by violating the fair hearing rule.
Particulars
(a) No Prior Warning of Adverse Credibility Findings in violation of the Migration Act 1958 (Cth) s 425(1)
2. The second respondent failed to accord the applicant natural justice and procedural fairness as the second respondent based its decision upon a series of adverse credibility findings, which rejected out of hand, almost all of the applicant's claims on the basis of credibility,…

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.

Continue reading ACP15 v Minister for Immigration

Details

AGLC: ACP15 v Minister for Immigration [2015] FCCA 798
Case: [2015] FCCA 798
Decision Date: 26 March 2015

CaseChat Overview and Summary

The applicant, ACP15, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to affirm the refusal of a Protection (class XA) visa. The Minister for Immigration was the respondent. The proceedings were before the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the RRT had committed a jurisdictional error in its decision-making process. This involved an examination of whether the RRT had properly considered the evidence before it and applied the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

Judge Street found that the RRT had not made any jurisdictional error. The Court concluded that the RRT had adequately considered the applicant's claims and the evidence presented, and had applied the correct legal tests. Consequently, the Court ordered that the proceedings be summarily dismissed.

Orders