Apu17 v Minister for Immigration - [2017] FCCA 1591

FEDERAL CIRCUIT COURT OF AUSTRALIA

APU17 v MINISTER FOR IMMIGRATION

[2017] FCCA 1591

Catchwords:
MIGRATION – Migration Act1958 (Cth) – protection visa application – s.48A of the Act – s.48A argued not to preclude a subsequent protection visa application because an earlier protection visa application was not made on the correct version of Form 866 in force in 1999 but rather on a later Form 866 and hence earlier protection visa application invalid – argument rejected and earlier protection visa application not invalid – s.25C of the Acts Interpretation Act 1901 (Cth) applicable in any event – relief should also be refused on discretionary grounds – no jurisdictional error – application dismissed.

Legislation:

Commonwealth Constitution, s.75(v)

Acts Interpretation Act 1901 (Cth), ss.2, 25C, 49A

Legislation Act 2003 (Cth), ss.13, 14

Migration Act 1958 (Cth), ss.36, 46, 47, 48A, 65, 476, 477, 495

Migration Amendment Regulations 1999 (No. 12) (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566
BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178

Edwards v Santos Ltd (2011) 242 CLR 421

Applicant:

APU17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 435 of 2017

Judgment of:

Judge Dowdy

Hearing date:

2 June 2017

Delivered at:

Sydney

Delivered on:

13 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr O Jones of Counsel

Solicitors for the Applicant:

Firmstone & Associates

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 14 February 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 435 of 2017

APU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Lebanon aged 31 years, having been born on 21 January 1986.
By Application filed in this Court on 14 February 2017 he seeks that a decision of an officer of the Department of Immigration and…

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: [2017] FCCA 1591
Decision Date: 13 July 2017

CaseChat Overview and Summary

The applicant, Apu17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Apu17 a protection visa. The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Apu17's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Dowdy J found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent cases, emphasizing that a failure to consider all relevant aspects of an applicant's case constitutes a jurisdictional error. The Court reasoned that the delegate's assessment was superficial and did not engage with the substance of Apu17's evidence, leading to an unreasonable conclusion.

Consequently, Dowdy J quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders