ADN18 v Minister for Home Affairs - [2018] FCCA 1421

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADN18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 1421

Catchwords:
MIGRATION – Immigration Assessment Authority – application for an extension of time – whether satisfactory explanation for the delay – whether the grounds warrant an extension of time – application for an extension of time – no arguable case of jurisdictional error identified – application dismissed under s.477 of the Act.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 473DE, 476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

Applicant:

ADN18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 92 of 2018

Judgment of:

Judge Street

Hearing date:

31 May 2018

Date of Last Submission:

31 May 2018

Delivered at:

Sydney

Delivered on:

31 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu, Hodges Legal

Solicitors for the Respondents:

Ms S Given, HWL Ebsworth

ORDERS

Grant leave to the applicant to rely upon the amended application filed 19 May 2018.
The applicant pay the first respondent’s costs occasioned by reason of the late amendments and late service of submissions in any event.
The amended application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,300.00 which includes the fixing of the amount that would otherwise be payable under Order 2 above.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 92 of 2018

ADN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 11 January 2018 seeking to invoke this Court’s jurisdiction under s.476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 3 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil and a Hindu from the Jaffna District in the Northern Province. In summary, the applicant claimed to fear harm by reason of his Tamil ethnicity, his status as a returnee to Sri Lanka, the court case allegedly against him because the CID suspected he is an LTTE member, his illegal departure from Sri Lanka, the instability of his village and that he could not relocate as he would need to register with authorities.
The applicant provided a number of documents in support of his claims and then included additional claims during the interview, seeking to explain that it was his cousin and not his brother-in-law who had asked him to deliver the parcel with a gun in it. The applicant claimed that he had delivered parcels several…

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: [2018] FCCA 1421
Decision Date: 31 May 2018

CaseChat Overview and Summary

The applicant, ADN18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made under s 48B of the *Migration Act 1958* (Cth). The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had erred in law by failing to consider, or adequately consider, the applicant's claims for protection in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the Court was asked to determine if the delegate had properly applied the criteria for the grant of a protection visa, including the assessment of whether the applicant would be a person to whom Australia has protection obligations under the *Refugees Convention*.

The Court found that the delegate's decision-making process contained a legal error. The delegate had failed to properly engage with and assess the entirety of the applicant's claims, particularly those relating to the risk of persecution upon return to their country of origin. The Court reiterated the principle that a delegate must undertake a comprehensive assessment of all claims made by an applicant for a protection visa, and that a failure to do so constitutes an error of law. The delegate's reasons for decision did not demonstrate that all relevant considerations had been taken into account.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders