AGL15 v Minister for Immigration - [2015] FCCA 1063

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1063

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

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

First Applicant:

AGL15

Second Applicant:

AGM15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 791 of 2015

Judgment of:

Judge Street

Hearing date:

23 April 2015

Date of Last Submission:

23 April 2015

Delivered at:

Sydney

Delivered on:

23 April 2015

REPRESENTATION

Solicitor for the Applicants:

Ms L. King

Solicitors for the Respondents:

Ms B. Rayment
Mills Oakley Lawyers

ORDERS

The proceedings are summarily dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 791 of 2015

AGL15

First Applicant

AGM15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 4 March 2015, affirming a decision of the delegate not to grant the applicants a Protection (class XA visa). The first respondent moved for summary dismissal of the application on the grounds that the application failed to disclose any arguable jurisdictional error.
The application identifies the following grounds:
1. The Refugee Review Tribunal and the Minister for Immigration and Border Protection did not look at the Applicants’ evidences correctly according to law in making its decision. Its decision is biased and unreasonable.
The first respondent identified that there was no substance in relation to the alleged assertion of bias on the basis of an adverse decision. I agree with the submissions of the first respondent that there is no substance in the ground in the application and that, to the extent that it identifies an assertion of unreasonableness, that it is an impermissible challenge to the merits of the decision. It cannot be said that a reasonable person might believe that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits because it made adverse findings of credit against the applicant.
The solicitor for the respondent indicated that the matter had been received by the solicitor the day before this First Court date and that the solicitor was desirous of an adjournment so as to get the benefit of obtaining a transcript and input from counsel, to file an amended application and to put on further affidavit evidence. The adjournment was opposed by the first respondent. The first respondent properly identified that the application filed was doomed to failure. There is no utility in granting…

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: [2015] FCCA 1063
Decision Date: 23 April 2015

CaseChat Overview and Summary

The applicant, AGL15, 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 was satisfied that the RRT had adequately considered the applicant's claims and the evidence presented, and had applied the correct legal principles in reaching its conclusion. Consequently, the Court determined that the proceedings were without merit and ordered that they be summarily dismissed.

Orders