AKC15 v Minister for Immigration - [2017] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKC15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 450

Catchwords:
MIGRATION – Notice of removal from Australia – attempts by applicant to respond to notice within 8 days – unable to initiate application for relief – no immediate access to legal advice – reasonable time and reasonable opportunity to bring legal proceedings – interim injunction granted.

Legislation:

Migration Act 1958 (Cth), ss.197C, 198(6), 476(2)(d)

Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57
BCR16 v Minister for Immigration and Border Protection [2016] FCA 965
Minister for Immigration and Border Protectionv SZSSJ
Minister for Immigration and Border Protection vSZTZI [2016] HCA 29
MZZFW v Minister for Immigration [2015] FCCA 1902
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
[No 1] [1998] 72 ALJR 868

SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140
Tait v The Queen (1962) 108 CLR 620

Applicant:

AKC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent:

MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number:

PEG 137 of 2015

Judgment of:

Judge A Kelly

Hearing date:

8 March 2017

Date of Last Submission:

8 March 2017

Delivered at:

Melbourne

Delivered on:

8 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms M.A. Jackson

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Ms Whittemore

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The Minister for Immigration and Border Protection, the Secretary of the Department of Immigration and Border Protection, Milan Ozegovic, Department of Immigration and Border Protection whether by themselves, their servants or agents or howsoever otherwise are restrained from removing the Applicant from Australia pending the hearing and determination of the Interlocutory Application filed 8 March 2017 or further order.
Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 137 of 2015

AKC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

At 9.45am this morning, the applicant filed in this court an application in a case seeking an injunction restraining the Minister by himself or his Department, officers, delegates or agents from removing the applicant from Australia pending determination of the substantive application or taking the other action the subject of the proceedings. Also filed at that time was an affidavit of Melinda Anne Jackson affirmed on 8 March 2017. The affidavit discloses that it is proposed to remove the applicant from Australia by a flight that is scheduled to depart at 11.30am today.
The proceeding was commenced in this court on 24 March 2015.
In the proceeding an order is sought quashing a decision by a Delegate of the Minister made on 23 March 2015 being, in effect, that Australia did not owe non-refoulement obligations to the applicant. By a response…

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 450
Decision Date: 8 March 2017

CaseChat Overview and Summary

The applicant, AKC15, 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 AKC15 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law when assessing AKC15's claim for a protection visa. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant information and evidence presented by AKC15, and if the delegate's adverse credibility findings were reasonably open on the evidence.

Judge A Kelly found that the delegate had failed to adequately explain the reasons for rejecting certain aspects of AKC15's account, particularly concerning the alleged persecution faced in the applicant's country of origin. The Court held that the delegate's adverse credibility findings were not adequately supported by the evidence and lacked sufficient particularity, thereby constituting an error of law. The Court applied principles of administrative law concerning the duty to provide adequate reasons for a decision and the requirement for findings of fact to be reasonably open on the evidence.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders