AHD16 v Minister for Immigration - [2018] FCCA 1118

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHD16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1118

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – show cause hearing – consideration of factors – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Applicant:

AHD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 281 of 2016

Judgment of:

Judge Nicholls

Hearing date:

28 February 2018

Date of Last Submission:

28 February 2018

Delivered at:

Sydney

Delivered on:

9 May 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mr R White of Mills Oakley Lawyers

ORDERS

The application made on 10 February 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 281 of 2016

AHD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE3”). Also in evidence are two documents tendered by the Minister, one being…

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 1118
Decision Date: 9 May 2018

CaseChat Overview and Summary

The applicant, AHD16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before the Federal Circuit and Family Court of Australia.

The primary 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 consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant information or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Nicholls found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding their fear of persecution. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper, rational, and comprehensive assessment of all relevant material. The failure to give due weight to specific, credible evidence constituted a failure to exercise the power conferred by the relevant legislation, leading to jurisdictional error.

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

Orders