FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMN16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2531 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – applications for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant Protection visas to the Applicants – Applicants need an extension of time of 329 days under s.477(2) of the Migration Act 1958 (Cth) – Applicants declined to appear at an interview with the Delegate of the Minister for Immigration and Border Protection and declined to attend a hearing before the Administrative Appeals Tribunal and invited both Delegate of the Minister for Immigration and Border Protection and Administrative Appeals Tribunal to refuse their Protection visa applications with a view to applying for Ministerial intervention under s.417 of the Migration Act 1958 (Cth) – subsequent to decision of the decision of the Administrative Appeals Tribunal Applicants make three failed attempts for Ministerial intervention – Applicants ought to be bound by their deliberate plan and strategy – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 425, 476, 477 |
| Cases cited: Minister for Immigration v SZLIX (2008) 245 ALR 501 |
| First Applicant: | AMN16 |
| Second Applicant: | AMO16 |
| Third Applicant: | AMP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 505 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| The First and Second Applicants appeared in person and the Third Applicant appeared through her Litigation Guardian, the First Applicant. |
| Counsel for the Respondents: | Ms S Sangha |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS
The Application filed in this Court on 7 March 2016 for an extension of time order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 505 of 2016
| AMN16 |
First Applicant
| AMO16 |
Second Applicant
| AMP16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant in this proceeding is a male citizen of Tonga aged 32 years, having been born on 8 December 1984, and by order 1 of my orders of 1 April 2016 is the Litigation Guardian of the Third Applicant for the purposes of this proceeding pursuant to Division 11.2 of the Federal Circuit Court Rules 2001
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Details
- Case
- [2017] FCCA 2531
- Decision Date
CaseChat Overview and Summary
The applicants, AMN16 and his family, sought judicial review of a decision by the Minister for Immigration to refuse their applications for protection visas. The primary decision-maker had refused the visas after the first applicant declined an invitation to attend an interview to discuss his claims. The applicants argued that their intention in applying for the protection visas was not to have them granted by the Department, but rather to obtain a refusal decision which would then allow them to seek ministerial intervention under section 417 of the Migration Act 1958.
The legal issue before the court was whether the primary decision-maker erred in refusing the protection visas based on the first applicant's failure to attend an interview, despite the applicants' stated intention to seek ministerial intervention. The court was required to determine if the decision-maker's assessment of the credibility of the claims was vitiated by the refusal to test those claims through an interview, and whether this refusal was reasonable in the circumstances.
Dowdy J reasoned that the primary decision-maker was entitled to consider the applicants' stated intention to seek ministerial intervention as a relevant factor in assessing the genuineness of their protection visa application. The decision-maker's finding that the veracity of the claims could not be tested without an interview, and therefore the credibility of the claims remained unascertained, was a logical consequence of the first applicant's refusal to participate in the interview process. The court held that the decision-maker was not obliged to afford the applicants the benefit of the doubt when their claims remained untested, and consequently, was not satisfied that Australia owed protection obligations to the applicants.
The court dismissed the application for judicial review, upholding the decision of the primary decision-maker to refuse the protection visas.
The legal issue before the court was whether the primary decision-maker erred in refusing the protection visas based on the first applicant's failure to attend an interview, despite the applicants' stated intention to seek ministerial intervention. The court was required to determine if the decision-maker's assessment of the credibility of the claims was vitiated by the refusal to test those claims through an interview, and whether this refusal was reasonable in the circumstances.
Dowdy J reasoned that the primary decision-maker was entitled to consider the applicants' stated intention to seek ministerial intervention as a relevant factor in assessing the genuineness of their protection visa application. The decision-maker's finding that the veracity of the claims could not be tested without an interview, and therefore the credibility of the claims remained unascertained, was a logical consequence of the first applicant's refusal to participate in the interview process. The court held that the decision-maker was not obliged to afford the applicants the benefit of the doubt when their claims remained untested, and consequently, was not satisfied that Australia owed protection obligations to the applicants.
The court dismissed the application for judicial review, upholding the decision of the primary decision-maker to refuse the protection visas.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
By letter of 13 January 2015 the Delegate invited the First Applicant to attend an interview to discuss the Protection visa application on 5 February 2015. However, by letter of 14 January 2015 the Applicants’ registered migration agent responded to the interview invitation by stating as follows:We seek to remind you that our initial submission dated 18 August 2014 highlighted the fact that AMN16 and family requires to seek Ministerial consideration under s417 of the Act and intervention due to the manifestation of compelling and compassionate factors.We re-iterate that AMN16 and family fails to satisfy the Criteria to be satisfied at the time of application for the Onshore protection Visa. It is acknowledged that this application will and must be refused. The intention of AMN16 and family in making this application is to obtain a decision from the Department of Immigration and Border protection refusing the application.Upon receiving this decision, it will be ledged at the Refugee Review Tribunal. Similarly the RRT will affirm the primary Departmental decision, whereupon it will enable the family to access the Minister under s417 of the Act.……………………………………………………………………………It is therefore humbly requested that a decision be made as soon as possible to refuse the application without an interview.(emphasis added) In her Decision Record the Delegate recorded that the First Applicant had declined an invitation to attend an interview with her to discuss his claims. The Delegate then stated that whilst the First Applicant’s claims must still be investigated, because he had declined to attend an interview the veracity of his claims could not be tested or fully ascertained. As the credibility of the claims remained untested the Delegate considered that she was unable to afford the First Applicant the benefit of the doubt and could not be satisfied as to the credibility of the claims that had been made and she was not satisfied that Australia had protection obligations to the First Applicant under either the Refugees Convention criterion or the complementary protection criterion and she refused to grant Protection visas to him and the Second and Third Applicants as members of his family unit. The Applicants applied to the Tribunal for merits review of the decision of the Delegate on 30 January 2015. The application was forwarded to the Tribunal under cover of a letter from the Applicants’ registered migration agent dated 30 January 2015 which stated as follows:We act and write on behalf of AMN16 and family who were seen again this morning at our office concerning the aforementioned case.We have been engaged to assist in this matter. As instructed by AMN16 we have duly assisted in completing the RRT form R1 and he and his wife have signed it accordingly.It is acknowledged that AMN16 and family fail to satisfy the “Criteria to be satisfied at the time of the application for the ‘Onshore Protection Visa’”. It is acknowledged that this application for review will and must be refused. This is the case, at the present time. (emphasis added)The intention of AMN16 and family, given the current situation is to proceed to apply to the Refugee Review Tribunal for the review of this primary decision. It is acknowledged that your office the Refugee Review Tribunal will affirm the primary decision by the Delegate to the Minister to refuse the grant of the Onshore Protection 866 visa to AMN16 and family.Upon receiving a decision of the Refugee Review Tribunal AMN16 and family intend to make a request to the Minister for Immigration and Border Protection under s417 of the Migration Act 1958.There exists and (sic) manifested strong compelling and compassionate reasons and factors and seeks to access Ministerial Discretion under s417 of the Act.We humbly seek on behalf of AMN16 and family an expeditious decision without the necessity of a formal hearing to enable this to occur and proceed without undue hindrance.To access the discretionary power to the Minister, it is necessary that AMN16 and his family go through this process.A Hearing will not be necessary.We look forward to your understanding and earliest advice accordingly in this matter.If you have any questions please contact the undersigned.
Ratio Decidendi
Legal Principle Established
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