Ajx16 v Minister for Immigration - [2017] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJX16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2494

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 63 days under s.477(2) of the Migration Act 1958 (Cth) – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.441A, 477

Cases cited:

AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143

MZABP v Minister for Immigration (2015) 242 FCR 585

SZJBD v Minister for Immigration (2009) 179 FCR 109

SZRMQ v Minister for Immigration (2013) 219 FCR 212

SZSEI v Minister for Immigration [2014] FCA 465

SZTES v Minister for Immigration [2015] FCAFC 158

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

WZAVW v Minister for Immigration [2016] FCA 760

Applicant:

AJX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 383 of 2016

Judgment of:

Judge Dowdy

Hearing date:

24 November 2016

Delivered at:

Sydney

Delivered on:

20 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr N. Swan of Counsel

Solicitors for the Respondents:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS

The Application filed in this Court on 22 February 2016 for an extension of time order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 383 of 2016

AJX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of China aged 27 years, having been born on 11 February 1990.
By Application filed in this Court on 22 February 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 30 May 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived in Australia on 18 January 2008 holding a Student (Subclass 571) visa (Student visa) which expired on 21 September 2010. However, that visa was cancelled on 9 May 2009 and the Applicant remained in Australia as an unlawful non-citizen until he applied for a Protection visa, the subject of this proceeding, on 5 December 2013. On 9 December 2013 he was issued a Bridging Visa C in association with his Protection visa application.
The Application to…

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 2494
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Dowdy J considered the application of Ajx16 (the applicant) for judicial review of a decision made by the Minister for Immigration (the respondent). The applicant sought to challenge the respondent's decision to refuse to grant a protection visa.

The central legal issue before the Court was whether the respondent's delegate had failed to consider relevant information when assessing the applicant's claims for protection. Specifically, the applicant argued that the delegate overlooked crucial evidence pertaining to their fear of persecution in their country of origin, thereby rendering the decision unreasonable.

Dowdy J's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to consider all relevant information placed before them. The Court examined the delegate's assessment and found that certain documentary evidence, which was critical to substantiating the applicant's claims of past persecution and well-founded fear of future persecution, had not been adequately addressed or given proper weight. The delegate's failure to engage with this material meant that the decision was vitiated by jurisdictional error.

Consequently, the Court ordered that the respondent's decision be set aside and remitted to the respondent for reconsideration according to law.

Orders