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Akter v MIBP

Akter v MIBP

Case [2018] FCCA 3604 10 December 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AKTER & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3604

Catchwords:
MIGRATION – Application for judicial review – certificate issued under s.359A of the Migration Act 1958 – certificate invalid – where material significant to the fact finding process was not disclosed to the applicant – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.359A, 375A

Migration Regulations 1994, Sch.2, cl.886.225

Cases cited:

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197

First Applicant:

JESMIN AKTER

Second Applicant:

ZIAUR RAHMAN

Third Applicant:

LIA ZAVIRA RAHMAN

Fourth Applicant:

ARYA ZUNAIRAH RAHMAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1501 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

10 September 2018

Date of Last Submission:

10 September 2018

Delivered at:

Melbourne

Delivered on:

10 December 2018

REPRESENTATION

Counsel for the Applicants:

Mr Solomon-Bridge

Solicitors for the Applicants:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Goodwin

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

A writ of certiorari issue, quashing the decision of the Second Respondent dated 24 June 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1501 of 2016

JESMIN AKTER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 June 2016. That decision affirmed a decision of the delegate not to grant the applicants Skilled (Residence) (Class VB) visas.
The applicants are citizens of Bangladesh with the first and second named applicants arriving in Australia as the holders of student visas. The third and fourth named applicants are their children.
The applicants applied for the visas on 25 June 2009. On 20 July 2015 a delegate to the Minister refused to grant the visa on the basis that the first named applicant did not satisfy cl.886.225 of Schedule 2 to the Migration Regulations 1994 as the applicant did not satisfy Public Interest Criterion (‘PIC’) 4020.
PIC 4020 relevantly provides:
4020 (1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(3)To avoid doubt, subclauses (I) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because…

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 Akter v MIBP

Details

AGLC: Akter v Minister for Immigration [2018] FCCA 3604
Case: [2018] FCCA 3604
Decision Date: 10 December 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Akter against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant sought to challenge the decision of the Minister to refuse to grant him a protection visa.

The primary legal issue before the Federal 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 had failed to properly consider the applicant's claims of past persecution and fear of future persecution in his country of origin, and whether the delegate had failed to adequately assess the risk of harm to the applicant should he be returned.

The court found that the delegate had failed to adequately consider the applicant's evidence regarding his past experiences and his fear of future persecution. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims. The court applied the principles of administrative law, emphasizing the obligation of a decision-maker to genuinely consider all relevant evidence and to provide reasons that adequately explain the decision. The delegate's failure to do so constituted a jurisdictional error.

The Federal Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders