Atta v Minister for Immigration - [2019] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTA v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 360

Catchwords:
MIGRATION – Application for reinstatement of extension of time – consent orders voluntarily entered into – diplomatic visa – whether applicant is entitled to rely on VEVO status – reinstatement application dismissed – no medical evidence – no issue of fraud or duress – no issue of substantial injustice.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 15, 16, 17, 18

Federal Circuit Court Rules 2001 (Cth), r.16.05

Federal Court of Australia Act1976 (Cth), s.23

Migration Act 1958 (Cth), ss.65, 82, 351

Migration Regulations 1999 (Cth), cls.572.211, 573.211, 995.211, 995.511

Cases cited:

Atta v Minister for Immigration & Anor [2018] FCCA 2651

Atta v Minister for Immigration and Border Protection [2018] FCA 145

Badoui Al Badoui v The Minister for Immigration & Anor (2006) FMCA 1064

Hunter v Lee (1999) FCA 1075

Moussa v The Minister for Immigration and Border Protection (2015) FCA 1280

SZCZF v Minister for Immigration and Citizenship (2009) FCA 208

SZVGM v Minister for Immigration & Anor (2016) FCCA 1602

Applicant:

DINA MOHAMED MAGDY MAHMOUD RASHAD ATTA

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2877 of 2017

Judgment of:

Judge Baird

Hearing date:

5 February 2019

Date of Last Submission:

5 February 2019

Delivered at:

Sydney

Delivered on:

5 February 2019

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Solicitors for the Respondent:

Ms S. Sangha, Mills Oakley

ORDERS

The application in a case be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYG 2877 of 2017

DINA MOHAMED MAGDY MAHMOUD RASHAD ATTA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

Introduction

This is an application in a case, or an interlocutory application, as it is also described, filed on 19 October 2018 seeking reinstatement of the Applicant, Ms Dina Atta’s, application for an extension of time in which to file an application for judicial review by this Court of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 5 April 2017. The Tribunal affirmed a decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs), made 27 January 2016 to refuse to grant Ms Atta a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) Visa under s.65 of the Migration Act 1958 (Cth).
The application for extension of time in which to file the substantive application for review was dismissed by this Court by consent on 23 August 2018. I note that the orders for consent dismissal were signed by Ms Atta and by the solicitor for the Minister on 21 August 2018. This application seeks to set aside the discontinuance of that proceeding.
I note that Ms Atta’s…

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 360
Decision Date: 5 February 2019

CaseChat Overview and Summary

Atta (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Hazara ethnicity, claimed to have suffered persecution in Afghanistan and sought protection in Australia. The Minister's delegate had refused the application, finding that the applicant's claims were not credible and that he had not established a well-founded fear of persecution. The matter came before Judge Baird 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 affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to adequately consider and assess the evidence relating to the persecution of Hazaras in Afghanistan, 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 Baird found that the delegate had indeed made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's claims was superficial and failed to engage with the significant body of country information concerning the persecution of Hazaras in Afghanistan. The delegate's adverse credibility findings were found to be based on an erroneous interpretation of the applicant's evidence and a failure to give proper weight to corroborating material. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to genuinely consider all relevant evidence and to provide reasons that are logically sound and defensible.

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

Orders