ASE15 v Minister for Immigration - [2015] FCCA 2581

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASE15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2581

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal had jurisdiction to hear the matter – whether the Tribunal erred in finding it did not have jurisdiction – prescribed period in which application for review can be made – whether applicant had notified Department of change of address – Tribunal mistaken in holding it had no jurisdiction – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.66(1), 412, 476, 494A, 494B, 494C.

Migration Regulations 1994, reg.431.

H v the Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153
Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437
MZZDJ v Minister for Immigration [2013] FCAFC 156

Applicant:

ASE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 197 of 2015

Judgment of:

Judge Street

Hearing date:

17 September 2015

Date of Last Submission:

17 September 2015

Delivered at:

Sydney

Delivered on:

17 September 2015

REPRESENTATION

Solicitors for the Applicant:

Mr T Savu

Counsel for the Respondents:

Mr R J S French

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The third applicant is removed as party to these proceedings.
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 2 April 2015 and that decision is quashed.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to review application of the first, second and fourth applicants of the decision of the delegate made on 14 January 2015 before it according to law.
The first respondent pay the applicants’ costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 197 of 2015

ASE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 2 April 2015, holding that the Tribunal did not have jurisdiction in the matter. At the commencement of the proceedings, the solicitor for the applicants confirmed that there were separate proceedings on foot for the third applicant relating to the same decision. It was in those circumstances that the Court made an order removing the third applicant as a party to the proceedings.
The Tribunal noted, pursuant to s.412(1)(b) of the Act and reg.431 of the Migration Regulations 1994, an application for review of the decision of the delegate had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal held that the material date in relation to notification of the first, second and fourth applicants was the dispatch of a letter dated 14 January 2015. The Tribunal wrote to the applicants on 11 March 2015 informing them that the application appeared to be out of time.
The Tribunal…

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: [2015] FCCA 2581
Decision Date: 17 September 2015

CaseChat Overview and Summary

ASE15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to quash the Tribunal's decision.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the real chance of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the relevant legal tests for establishing membership of a particular social group and for determining whether there was a real chance of persecution, having regard to the evidence before it.

Judge Street found that the Tribunal had made an error of law in its approach to assessing the applicant's claim of membership of a particular social group. The Court held that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the characteristics that defined the alleged social group and how the applicant fit within those characteristics. Furthermore, the Court determined that the Tribunal's assessment of the risk of persecution was tainted by this initial error in defining the social group. The Court applied the principles established in cases concerning the interpretation of "particular social group" under international refugee law and domestic migration legislation, emphasizing the need for a robust and evidence-based assessment.

The Court ordered that the decision of the Administrative Appeals Tribunal be quashed and remitted the matter to the Tribunal for redetermination according to law.

Orders