AGL17 v Minister for Immigration - [2017] FCCA 3214

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGL17 v MINISTER FOR IMMIGRATION

[2021] FCCA 3214

Catchwords:
MIGRATION – Protection (Class XA) (subclass 866) visa – application for extension of time for application to review refusal of application by delegate of the Minister for Immigration and Border Protection – delegate finding application invalid because previous application made – applicant arguing previous application invalid because Form 866 was a legislative instrument that was not tabled in the Parliament – Form 866 not a legislative instrument – Anshun estoppel.

Legislation:
Migration Act 1958, ss.46, 48A, 476(3), 477, 500, Pts.5, 7
Legislation Act 2003, ss.8, 15H, 38
Migration Regulations 1994, Sch.1, pt.4, reg.2.07

Cases cited:

BVJ16 v Minister for Immigration & Anor [2017] FCCA 178
BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 1205
CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; (1981) 36 ALR 3; (1981) 55 ALJR 621; [1981] HCA 45

Applicant:

AGL17

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File number:

MLG 111 of 2017

Judgment of:

Judge Riley

Hearing date:

30 October 2017

Date of last submission:

11 December 2017

Delivered at:

Melbourne

Delivered on:

20 December 2017

REPRESENTATION

Advocate for the applicant:

Hugh Ford

Solicitors for the applicant:

Hugh Ford & Associates

Advocate for the respondent:

Adam Cunynghame

Solicitors for the respondent:

Sparke Helmore Lawyers

ORDERS

The application for an extension of time filed on 6 November 2017, and the application for review filed on 17 January 2017, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 111 of 2017

AGL17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time to review of a decision made by a delegate of the Minister for Immigration and Border Protection (“the Minister”). The delegate decided on 14 October 2016 that an application for a protection visa filed by the applicant on 9 August 2016 was invalid pursuant to s.48A of the Migration Act 1958 (“the Act”) because the applicant was in Australia on 9 August 2016, he had previously applied for a protection visa on 13 March 2012 and that application had been refused. The decision under consideration in the current proceeding is the delegate’s decision made on 14 October 2016.
The parties agreed that, in this case, the decision of the delegate was reviewable in this court. That is because the decision of the delegate was not a primary decision as defined in s.476(3) of the Act. The delegate’s decision was not a primary decision because it was not reviewable by the Administrative Appeals Tribunal (“the Tribunal”) under Parts 5 or 7 or s.500 of the Act. The decision was not reviewable by the Tribunal because the Tribunal can only review decisions to grant or refuse a visa. The delegate’s decision in this case was to the effect that the protection visa application filed…

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: [2017] FCCA 3214
Decision Date: 20 December 2017

CaseChat Overview and Summary

AGL17 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Sudanese origin, had arrived in Australia in 2013 and subsequently applied for a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa, specifically concerning the assessment of his claims for protection. The matter came before the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims for protection. This involved determining whether the delegate had properly considered all relevant evidence, applied the correct legal tests in assessing the risk of harm to the applicant in his country of origin, and whether the delegate's findings were supported by the evidence before them. The Court was required to consider the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) as they applied to protection visa applications.

Judge Riley found that the delegate had made a jurisdictional error in assessing the applicant's claims. Specifically, the delegate failed to adequately consider the applicant's evidence regarding his fear of persecution due to his ethnicity and political opinions. The Court held that the delegate's assessment was unduly narrow and did not properly engage with the applicant's subjective fears, nor did it adequately assess the objective likelihood of harm. The legal principle applied was that a delegate must undertake a comprehensive and balanced assessment of all evidence presented, including the applicant's subjective experience, when determining whether a real chance of persecution exists.

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

Orders