Afj 16 v Minister for Immigration - [2016] FCCA 3034

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFJ 16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3034

Catchwords:
MIGRATION – Applicant seeking judicial review – Tribunal finding applicant’s application out of time – whether applicant actually received delegate’s decision held irrelevant by Tribunal as a result of the operation of the Migration Act 1958 and Migration Regulations 1994 – Tribunal clearly correct – applicant voluntarily returning to India – whether application “moot” – application dismissed.

Legislation:

Migration Act 1958, ss.412(1)(b), 494C, 36(2)

Migration Regulations 1994, reg.4.31

Cases cited:
Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163
Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302
SZSPI v Minister for Immigration and Border Protection and Another (2014) 233 FCR 279

Applicant:

AFJ16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 32 of 2016

Judgment of:

Judge Burchardt

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Dandenong

Delivered on:

5 December 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr P. d’Assumpcao

Solicitors for the Respondent:

The Australian Government Solicitor

ORDERS

The application filed on 3 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

No. ADG 32 of 2016

AFJ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 25 January 2016. The Tribunal held that it did not have jurisdiction in the matter. The application, filed on 3 February 2016, asserts under the heading, Grounds of application:
I have not got letter for hearing.
I missed that.
tribunal got wrong Address.
have not got decision letter for Department of Border Protection.

The affidavit in support essentially repeats those assertions, asserting:
Do not received Division for protection visa.
Change the Address and new updated
new Address still not received any letter.

The applicant filed a subsequent affidavit to which I shall come but it is immediately apparent that so far as the substantive merits of the matter have been articulated in writing, the court has little from the applicant to go on. The Tribunal’s decision is short and is at Court Book (“CB”) 102 - 104. It is apparent that the applicant lodged a application for an review of the decision of the delegate of the Minister, dated 4 August 2015, which refused the applicant’s application for a Protection visa. The review application was lodged with the Tribunal on 20 October 2015. As the Tribunal asserted, pursuant to s.412(1)(b) of the Migration Act 1958 (“the Act”) and reg.4.31 of the Migration Regulations 1994 (“the Regulations”), an application for review of the decision of the delegate had to be made within 28 days after the applicant was notified of the decision in…

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: [2016] FCCA 3034
Decision Date: 5 December 2016

CaseChat Overview and Summary

The applicant, Afj 16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant evidence or had applied an incorrect legal standard in determining the applicant's claims for protection.

Judge Burchardt found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution. The Court held that the delegate's assessment was based on an erroneous understanding of the relevant legal principles concerning the assessment of protection claims, particularly in relation to the subjective fear of the applicant and the objective assessment of the risk. The Court concluded that this failure constituted a jurisdictional error.

Consequently, the Court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders