Ali v Minister for Immigration - [2015] FCCA 369

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 369

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – whether correct form used for application for review by Migration Review Tribunal – whether jurisdiction of Migration Review Tribunal invoked – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 347, 348, 474, 476, 495

Hassan v Minister for Immigration & Border Protection & Anor [2013] FCCA 1917
Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99
Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30
MZZCU v Minister for Immigration & Anor [2013] FCCA 1060
Pheng v Minister for Immigration & Multicultural Affairs (2000) 102 FCR 283
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42
SZJDS v Minister for Immigration & Citizenship & Anor (2012) 201 FCR 1; [2012] FCAFC 27

Applicant:

MOHAMMED HAMED ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 97 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

23 February 2015

Date of Last Submission:

23 February 2015

Delivered at:

Perth

Delivered on:

23 February 2015

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 97 of 2014

MOHAMMED HAMED ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited extempore reasons)

Introduction

The Court has before it this morning an application by the applicant, Mohammed Hamed Ali, seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal (“Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 151-155) dated 11 March 2014. The Tribunal decided that it did not have jurisdiction in relation to the applicant’s application for review lodged with the Tribunal on 2 January 2014.

Background

The background to the application is set out hereunder.
On 10 December 2013 the Delegate refused the applicant’s application for a Student (Temporary) (Class TU) visa (“Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 97-103). The evidence before the Tribunal was that the applicant was notified of the Delegate’s Decision the same day: CB 92-95. Consequently, the prescribed period for making an application for review of the Delegate’s Decision ended on 31 December 2013: Migration Act 1958, s.347(1)(b)(iii); CB 93. Because the Tribunal’s offices were closed on 31 December 2013, the prescribed period ended on 2 January 2014 being the day that the Tribunal opened again.
The applicant lodged an application for review of the Delegate’s Decision on 2 January 2014 on an invalid form ‘M1’ being…

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.

Keep reading for free

Create a free CaseChat account to read Ali v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 369
Decision Date: 23 February 2015

CaseChat Overview and Summary

In *Ali v Minister for Immigration*, the applicant, Mr. Ali, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Ali had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Antoni Lucev of 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 their assessment of Mr. Ali's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the evidence presented by Mr. Ali regarding his fear of persecution, and whether the delegate's adverse credibility findings were reasonably open on the material before them. This involved an examination of the delegate's assessment of the subjective fear and the objective likelihood of harm.

Judge Lucev's reasoning focused on the principles of administrative decision-making and the assessment of protection claims under the *Migration Act*. The Court considered the established legal framework for determining whether a person has a well-founded fear of persecution, which requires an assessment of both subjective fear and objective risk. The Court reviewed the delegate's decision-making process, paying close attention to the reasons provided for rejecting Mr. Ali's claims and the extent to which those reasons were supported by the evidence. The Court found that the delegate had failed to adequately consider certain aspects of Mr. Ali's evidence and had made adverse credibility findings that were not sufficiently justified by the material before them.

Consequently, the Court found that the delegate's decision was affected by jurisdictional error. The Minister's decision to refuse the protection visa was set aside, and the matter was remitted to the Minister for reconsideration according to law.

Orders