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Apm19 v Minister for Immigration

Apm19 v Minister for Immigration

Case [2020] FCCA 2513 8 September 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

APM19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2513

Catchwords:

MIGRATION – Visa – protection visa – whether denial of procedural fairness – whether failure to consider integer of claim – request for impermissible merits review – McKenzie friend – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.44

Migration Act 1958 (Cth), ss.5(1), 5(H)(1), 91V(1), (2) & (3), 476

Cases cited:

Nepal v Minister for Immigration & Border Protection [2015] FCA 499

Applicant:

APM19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 61 of 2019

Judgment of:

Judge Heffernan

Hearing date:

5 March 2020

Date of Last Submission:

1 April 2020

Delivered at:

Adelaide

Delivered on:

8 September 2020

REPRESENTATION

The Applicant:

In person, with a McKenzie friend, Ms Nguyen

Counsel for the Respondents:

Ms Grenfell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 61 of 2019

APM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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 25 January 2019. That decision affirmed an earlier decision of a delegate of the first respondent Minister not to grant the applicant a protection visa pursuant to s 476 of the Migration Act 1958 (Cth) (‘the Act’).

Background

The applicant is a citizen of Iran. He arrived in Australia on 30 April 2013 as an irregular maritime arrival and applied for a protection visa on 1 August…

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 Apm19 v Minister for Immigration

Details

AGLC: APM19 v Minister for Immigration [2020] FCCA 2513
Case: [2020] FCCA 2513
Decision Date: 8 September 2020

CaseChat Overview and Summary

The applicant, Apm19, sought judicial review of a decision by the Minister for Immigration to refuse their application for a protection visa. The core of the dispute concerned allegations that the applicant was denied procedural fairness during the assessment of their visa application. The matter came before Judge Heffernan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was vitiated by a failure to afford the applicant procedural fairness. This encompassed whether the delegate failed to consider all relevant aspects of the applicant's claim and whether the applicant's request for what was characterised as an impermissible merits review was handled appropriately. The Court also considered the role and impact of a McKenzie friend in the proceedings.

Judge Heffernan reasoned that the delegate had adequately considered the applicant's claims, including the integer of their protection claims, and that the applicant had not been denied procedural fairness. The Court found that the applicant's request for a review was not a legitimate request for procedural fairness but rather an attempt to have the merits of the decision re-examined, which was outside the scope of the delegate's function. The application was dismissed.

Orders