AGX16 v Minister for Immigration - [2016] FCCA 2445

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGX16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2445

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – application for summary dismissal – earlier application for an extension of time having been discontinued – new application for an extension of time – whether new application is an abuse of process.

Legislation:
Migration Act 1958, ss.36(2B)(c), 486D
Federal Court of Australia Act 1976, s.23
Federal Circuit Court of Australia Act 1999, s.15
Federal Circuit Court Rules 2001, r.13.10(c)

Cases cited:
Applicant A26 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050
Bailey v Marinoff (1971) 125 CLR 529; [1972] ALR 259; (1971) 45 ALJR 598; [1971] HCA 49
BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471
BZAGD v Minister for Immigration and Border Protection [2016] FCA 670
Chen v Monash University [2016] FCAFC 66
Joshi v Minister for Immigration and Border Protection [2016] FCCA 2168
MZAER v Minister for Immigration and Border Protection [2016] FCCA 782
SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137
SZSML v the Minister for Immigration, Multicultural Affairs & Anor [2013] FCCA 1253
Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485; (1994) 11 EPLJ 446c; [1993] HCA 77

Applicant:

AGX16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 263 of 2016

Judgment of:

Judge Riley

Hearing date:

12 September 2016

Date of last submission:

12 September 2016

Delivered at:

Melbourne

Delivered on:

12 September 2016

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Corrina Ford Immigration Lawyers

Counsel for the first respondent:

Andrew Yuile

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application for summary judgment filed on 5 September 2016 be dismissed.
Order 2 made on 4 July 2016 be vacated.
The application for an extension of time and, if successful, the substantive application filed on 12 February 2016 be listed for hearing on 16 November 2016 at 10am.
The costs of today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 263 of 2016

AGX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application brought by the Minister for Immigration and Border Protection under r.13.10(c) of the Federal Circuit Court Rules 2001 (“the Rules”) to summarily dismiss an application brought by the applicant on 12 February 2016. That application is an application for an extension of time to review a decision of the Refugee Review Tribunal.
The applicant made an application for a protection visa on 26 August 2012. That application was refused by a delegate of the Minister on 28 March 2013. The applicant applied within time for review by the Tribunal, 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: [2016] FCCA 2445
Decision Date: 12 September 2016

CaseChat Overview and Summary

The applicant, AGX16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant AGX16 a protection visa. The matter was heard before Judge Riley in 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. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing AGX16's claims for protection.

Judge Riley found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the risk of future persecution. The Court reasoned that a proper assessment of a protection visa application requires a thorough examination of all evidence presented by the applicant, particularly concerning their subjective experiences and the objective country information. The delegate's assessment was found to be superficial in parts, leading to a conclusion that jurisdictional error had occurred.

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

Orders