Legal Research
Cases
Atta v Minister for Immigration

Atta v Minister for Immigration

Case [2018] FCCA 2651 28 September 2018

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2651

Catchwords:
MIGRATION – Estoppel – statutory estoppel – estoppel in public law –diplomatic visa – whether applicant is entitled to rely on VEVO status – extension of time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.12, 65, 82, 417, 477, 501

Migration Regulations 1944 (Cth) sch.2 cls.572, 995

Cases cited:

Atta v Minister for Immigration [2018] FCA 145

Attorney General (New South Wales) v Quin (1990) 170 CLR 1
Brickworks Limited v Shire of Warringah (1963) 108 CLR 568
DKX17 v Federal Court of Australia [2018] FCA 515
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; (2015) 231 FCR 539
Minister for Immigration v Kurtovic (1990) 21 FCR 193
MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration (No 2) [2016] FCAFC 138
Plaintiff S111/2017 v Minister for Immigration [2017] FCA 813
Plaintiff S111/2017 v the Minister for Immigration [2018] FCAFC 92
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 Q.B 416
SZSZW v Minister for Immigration [2017] FCCA 1710
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Applicant:

SELIM MOHAMED MAGDY MAHM ATTA

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2878 of 2017

Judgment of:

Judge Baird

Hearing date:

29 August 2018

Date of Last Submission:

29 August 2018

Delivered at:

Sydney

Delivered on:

28 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin on a direct access basis

Counsel for the Respondent:

Mr R Reilly

Solicitors for the Respondent:

Mills Oakley Lawyers

ORDERS

The application seeking an extension of time be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2878 of 2017

SELIM MOHAMED MAGDY MAHM ATTA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.477 of the Migration Act 1958 (Cth) seeking an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal made on 5 April 2017. That decision affirmed a decision of the Delegate of the First Respondent, now named the Minister for Home Affairs, made on 8 January 2016 to refuse to grant the Applicant, Mr Selim Atta, a Student (Temporary) (Class TU) Visa under s.65 of the Act.
Together with his sister, Mr Atta applied for the Visa on 8 January 2016. Mr Atta did not hold a current substantive visa at the time of the application, and had not done so since 2012.
The final day for filing the application to this Court for judicial review of the Tribunal’s decision was 10 May 2017. The application was filed on 15 September 2017, some 108 days outside the 35…

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.

Continue reading Atta v Minister for Immigration

Details

AGLC: Atta v Minister for Immigration [2018] FCCA 2651
Case: [2018] FCCA 2651
Decision Date: 28 September 2018

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 is from Afghanistan, claimed to fear persecution on the basis of his imputed political opinion and membership of a particular social group. The Minister's delegate had refused the visa, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa. The applicant argued that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the court was whether the delegate's assessment of the applicant's claims was procedurally unfair, thereby constituting jurisdictional error. Specifically, the applicant contended that the delegate failed to adequately consider certain evidence and that the reasons provided for the refusal were inadequate and did not engage with the applicant's submissions. The court was required to determine if the delegate's decision-making process was so flawed as to vitiate the lawfulness of the outcome.

Judge Baird found that the delegate's reasons for refusing the protection visa were inadequate. The delegate had failed to properly explain why certain aspects of the applicant's evidence were not accepted and had not adequately addressed the applicant's arguments regarding his imputed political opinion and membership of a particular social group. This failure to provide adequate reasons amounted to a failure to properly exercise the power conferred by the relevant legislation, resulting in jurisdictional error. The court therefore quashed the delegate's decision.

Orders