AGD15 v Minister for Home Affairs - [2018] FCCA 3725

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGD15 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3725

Catchwords:
MIGRATION – Protection visa – show cause hearing – application for judicial review of decision made by Tribunal– applicable principles – applicant afforded procedural fairness – no failure to apply the correct legal test – grounds of review have no reasonable prospect of success – application dismissed.

Legislation:

Federal Circuit Court Riles 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.65, 424A, 424AA, 425, 476

Cases cited:

Minister for Immigration and Border Protection v DDK15 [2017] FCAFC 188

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Morad v El-Ashey [2017] FCA 1136
MZAJQ v Minister for Immigration [2015] FCCA 593
Nichol v Discovery Africa Limited [2016] FCAFC 182
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v The Commonwealth (2010) 241 CLR 118
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190

Applicant:

AGD15

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 574 of 2015

Judgment of:

Judge A Kelly

Hearing date:

7 December 2018

Date of Last Submission:

7 December 2018

Delivered at:

Melbourne

Delivered on:

18 December 2018

REPRESENTATION

The Applicant:

In person

Solicitor for the First Respondent:

Mr van der Westhuizen

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

Pursuant to r 7.01(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the title of the first respondent be amended to Minister for Home Affairs.
The application filed on 17 March 2015 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.
The applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 574 of 2015

AGD15

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 17 March 2015, judicial review is sought of a decision of the Refugee Review Tribunal (Tribunal) made on 18 February 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

The applicant, a Sri Lankan national aged 37 years, first arrived in Australia on 19 July 2012 as an unauthorised maritime arrival.
On 20 November 2012, the applicant, with the assistance of his migration lawyers, applied for a Protection (Class XA) visa. In his application, the applicant listed his ethnicity as Singhalese and…

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 3725
Decision Date: 18 December 2018

CaseChat Overview and Summary

The applicant, AGD15, sought judicial review of a decision made by the Minister for Home Affairs concerning their application for a protection visa. The core of the dispute revolved around whether the applicant had been afforded procedural fairness during a show cause hearing and whether the Tribunal had applied the correct legal test in its assessment.

The primary legal issues before the Court were whether the Tribunal had failed to afford the applicant procedural fairness and whether the Tribunal had erred in law by failing to apply the correct legal test when considering the applicant's claim for a protection visa. The Court was required to determine if the applicant's grounds of review had a reasonable prospect of success.

Justice Kelly found that the applicant had been afforded procedural fairness and that the Tribunal had not failed to apply the correct legal test. Consequently, the Court concluded that the grounds of review lacked a reasonable prospect of success. The application for judicial review was therefore dismissed.

Orders