ASG17 v Minister for Immigration - [2019] FCCA 1492

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASG17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1492

Catchwords:
MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – whether credibility findings were “illogical” and “unreasonable” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Cases cited:

ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174
CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration & Border Protection (2018) 353 ALR 641
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

ASG17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 100 of 2017

Judgment of:

Judge Kendall

Hearing date:

22 January 2019

Date of Last Submission:

22 January 2019

Delivered at:

Perth

Delivered on:

5 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr S Walker (acting pro-bono)

Counsel for the First Respondent:

Mr P MacLiver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 100 of 2017

ASG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this Court on 20 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 23 January 2017.
The Tribunal affirmed a decision of a delegate of the first respondent, the then Minister for Immigration for Immigration and Border Protection (the “Minister”), not to grant the applicant a Temporary Protection (Class XD) (subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show jurisdictional error on the part of the Tribunal.

Background

The Court received and has reviewed a 182 page Court Book (“CB”) and detailed written submissions filed by the Minister on 15 January 2019. These written submissions accurately summarise the…

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: [2019] FCCA 1492
Decision Date: 5 June 2019

CaseChat Overview and Summary

The applicant, ASG17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around the AAT's assessment of the applicant's credibility in relation to their claims for protection.

The central legal issue before the Federal Court was whether the AAT's credibility findings constituted jurisdictional error. Specifically, the applicant argued that these findings were "illogical" and "unreasonable," thereby vitiating the Tribunal's decision.

Justice Kendall found no jurisdictional error in the AAT's decision. The Court reasoned that the Tribunal's assessment of the applicant's evidence and its subsequent credibility findings, while perhaps not to the applicant's satisfaction, were not so illogical or unreasonable as to amount to a failure to exercise its jurisdiction. The Court applied the established principles for reviewing administrative decisions, focusing on whether the Tribunal had acted within its legal powers and followed the correct legal procedures.

The application for judicial review was dismissed.

Orders