Ashraf v Minister for Immigration - [2018] FCCA 1762

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHRAF v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1762

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.359A, 360, 360A
Migration Regulations 1994 (Cth), Sch.2 cl.485.221

Cases cited:
Gill v the Minister for Immigration and Border Protection (2016) FCAFC 142
SZBEL v The Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZIVK v Minister for Immigration and Citizenship (2008) FCA 334

Applicant:

MUHAMMAD MUBASHAR ASHRAF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 624 of 2017

Judgment of:

Judge Hartnett

Hearing date:

25 June 2018

Delivered at:

Melbourne

Delivered on:

25 June 2018

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Mr Cunynghame

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 624 of 2017

MUHAMMAD MUBASHAR ASHRAF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application filed on 28 March 2017, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 9 March 2017, in which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a skilled (Provisional) (Class VC) (subclass 485) visa (‘the visa’).
The Applicant’s grounds of application are 14 in number, and I shall not set them out herein, but rather annex them to these reasons (‘Annexure A’). They are in the nature of submissions, largely reciting the procedural history of the matter and include the Applicant’s alleged conversation with an officer in the Department.
The First Respondent seeks dismissal of the application and that costs follow that event. The Court has before it the evidence as contained in the Court Book and an affidavit of the Applicant which was affirmed by him on 27 March 2017 and the contents of which are a replication of the grounds of application as stated.

Background

The Applicant has, throughout, acted as a litigant in person. There was no migration agent assisting the Applicant when he completed his application for the visa, no submissions made by any migration agent on behalf of the Applicant to either the delegate or the Tribunal; and no assistance provided by any migration agent upon the Applicant making application for review of the delegate’s decision to the Tribunal. In the response to hearing invitation, forwarded to the Tribunal by the Applicant, the Applicant indicated that he would take part in the scheduled hearing on 9 March 2017, would represent himself, and did not require an interpreter.
The Applicant applied for the visa on 9 December 2015. Relevantly, the primary criteria…

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: [2018] FCCA 1762
Decision Date: 25 June 2018

CaseChat Overview and Summary

Ashraf (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a protection visa. The applicant, who was of Pakistani origin, claimed to fear persecution in Pakistan due to his alleged involvement with a political organisation. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa. The applicant then sought review of this decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence presented in support of his protection claims, and that the delegate's adverse credibility findings were not open on the evidence. The applicant contended that this failure amounted to a jurisdictional error, rendering the decision invalid.

Judge Hartnett found that the delegate had failed to adequately assess the applicant's claims regarding his alleged involvement with the political organisation and the potential consequences of his return to Pakistan. The Court held that the delegate's adverse credibility findings were not sufficiently reasoned and did not engage with the entirety of the evidence. The delegate's approach was characterised as one of "selective engagement" with the evidence, which did not constitute a proper assessment of the applicant's claims. The Court applied the principles of administrative law concerning the duty to provide reasons and the requirement for decision-makers to genuinely consider all relevant evidence.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for Immigration for reconsideration according to law.

Orders