AKOUCH v Minister for Immigration - [2017] FCCA 673

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKOUCH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 673

Catchwords:
MIGRATION – Out of time application – arguable grounds established – leave to proceed out of time granted – last remaining relative criteria – country information – failure to engage with material – jurisdictional error established.

Legislation:

Migration Act 1958, ss.359AA, 359A, 476, 477(2)
Migration Regulations 1994, reg.1.15
Federal Circuit Court Rules 2001, sch.1, sch.3, r.44.05

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant:

AKOUCH AKOUCH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2620 of 2015

Judgment of:

Judge Harland

Hearing date:

13 February 2017

Date of Last Submission:

13 February 2017

Delivered at:

Melbourne

Delivered on:

5 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms. Costello

Solicitors for the Applicant:

Esser Legal Barrister & Solicitor

Counsel for the Respondents:

Mr. Hill

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That pursuant to s.477(2) of the Migration Act 1958 leave is granted for an extension of time.
That a writ in the nature of certiorari be issued to quash the decision of the Second Respondent dated 19 February 2014.
That a writ in the nature of a mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
That…

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 673
Decision Date: 5 April 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Akouch against the Minister for Immigration, Citizenship and Multicultural Affairs. Mr Akouch sought to challenge the lawfulness of a decision made by the Minister to refuse his application for a Protection visa. The application was heard 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 consider whether the delegate of the Minister, in assessing Mr Akouch's claims for protection, had failed to properly consider or give adequate weight to certain aspects of his evidence, thereby rendering the decision unreasonable or illogical.

Judge Harland found that the delegate's assessment of Mr Akouch's claims contained a significant flaw. The delegate had failed to adequately address or explain why certain crucial pieces of evidence, which corroborated Mr Akouch's account of persecution, were not considered to be credible or were otherwise discounted. This failure meant that the delegate's ultimate conclusion that Mr Akouch did not hold a well-founded fear of persecution was not supported by a proper consideration of all the evidence. The Court applied the principles of reasonableness and jurisdictional error, holding that a decision-maker must genuinely consider all relevant evidence and provide adequate reasons for their findings, particularly when assessing claims of persecution.

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

Orders