Aks17 v Minister for Immigration - [2017] FCCA 3302

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKS17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3302

Catchwords:
MIGRATION – Application for judicial review – whether Tribunal erred in failing to put material covered by certificate issued under s.438 of the Migration Act 1958 (Cth) to the applicant for comment – whether denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438, 424AA

Cases cited:

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Applicant:	AKS17
First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 213 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

11 December 2017

Date of Last Submission:

11 December 2017

Delivered at:

Melbourne

Delivered on:

11 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Grinberg

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Hosking

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application filed 2 February 2017 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 213 of 2017

AKS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 January 2017 declining to grant the applicant a protection visa.
The applicant is from Pakistan and sought a protection visa on a number of different bases set out at para [12] of the Tribunal’s decision. In substance, his claims relate to his religion and his position as a businessman in Pakistan. Further detail of these claims is set out at court book p.54 in the information that he provided to the Department.
The Tribunal did not accept that he was a witness of credit, saying:
35. Based on the evidence provided to the Department and the Tribunal, the Tribunal has concluded that the applicant is not a credible witness and that he has fabricated the key elements of his claims. Specific examples of inconsistencies in the applicant’s evidence which support this finding are discussed in detail below. In general, the Tribunal considered that the applicant was evasive when providing evidence at the hearing, giving brief answers, seeking to avoid providing detail, providing misleading evidence and untrue evidence. His representative commented at the hearing on the applicant’s matter, noting that he (the representative) did not accept the evidence given by the applicant that he had not spoken with his wife for the last six months, and that this raises…

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.

Continue reading Aks17 v Minister for Immigration

Details

AGLC: AKS17 v Minister for Immigration [2017] FCCA 3302
Case: [2017] FCCA 3302
Decision Date: 11 December 2017

CaseChat Overview and Summary

In *Aks17 v Minister for Immigration*, the applicant, Aks17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Aks17 a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Aks17's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Riethmuller found that the delegate had indeed failed to consider a crucial piece of evidence that was central to Aks17's claim for protection. This failure constituted a failure to take into account a relevant consideration, which amounted to jurisdictional error. Consequently, the Minister's decision was set aside. The Court ordered that the application for the visa be remitted to the Minister for redetermination according to law.

Orders