ALI v Minister for Immigration - [2014] FCCA 1965

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1965

Catchwords:
MIGRATION – Application for reinstatement of show cause application – consideration of applicant’s reasons for failing to attend hearing before Registrar – consideration of whether the applicant has an arguable case on the substantive application.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001

Lee v MIAC [2001] FCA 1448

Applicant:

ZAHOOR ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 274 of 2014

Judgment of:

Judge McGuire

Hearing date:

27 August 2014

Date of Last Submission:

27 August 2014

Delivered at:

Melbourne

Delivered on:

5 September 2014

REPRESENTATION

Counsel for the Applicant:

Unrepresented

Solicitors for the Applicant:

Unrepresented

Counsel for the First Respondent:

Ms Bosnjak

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

No appearance

ORDERS

The Application filed 27 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 274 of 2014

ZAHOOR ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application seeking that the respondent show cause why the applicant not be granted relief was filed 18 February 2014. That application relates to a decision of the Migration Review Tribunal (“the Tribunal”) made 24 December 2013 affirming a determination by the delegate of the Minister for Immigration and Border Protection (“the delegate”) to cancel the Applicant’s subclass 572 vocational Education and Training Sector visa (“the visa”).
The applicant would need, and has made application for, an extension of time. That issue, however, is not before me today.
The sole issue relates to the order of Registrar made 7 May 2014 dismissing the applicant’s application with costs due to the non-appearance by the applicant at the directions hearing. The applicant now seeks reinstatement of his application. He filed an application in a case accordingly on the 27 May 2014 together with an affidavit the contents of which are both in the same terms and as follows:
1. I mistakenly missed my hearing on 7 May 2014 though (sic) it is on 9 May.
2. MRT decisssion (sic) is unsatisfied. They totally ignore my rights of study and my letters I wrote to Chisholm Tafe.
3. I want to reinstate my case for further process and procedures.
The application in a case came on before me on the 27 August 2014. The applicant appeared representing himself. He did not require an interpreter. The applicant effectively repeated his submissions that he mistook the date of the 7 May 2014 for the 9 May 2014 and therefore missed the hearing before the Registrar.
The first respondent opposes the application for re instatement and seeks its dismissal.

Background facts

The applicant is from Pakistan. He arrived in Australia on 19 April 2012 as the holder of a subclass 572 student visa. That visa was cancelled by the delegate on 17 May 2013…

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: [2014] FCCA 1965
Decision Date: 5 September 2014

CaseChat Overview and Summary

The applicant, ALI, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge McGuire of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate had properly assessed the applicant's claims of persecution, particularly in relation to the credibility of the evidence presented and the application of the relevant legal criteria for protection visas.

Judge McGuire found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, specifically regarding the applicant's alleged experiences of persecution. The Court determined that the delegate's assessment was flawed because it did not properly engage with the applicant's account and the supporting documentation, leading to an unreasonable conclusion. The legal principle applied was 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 decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders