AVT16 v Minister for Immigration - [2017] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVT16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1984

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – factors considered – no arguable cause raised by the grounds of the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYRv Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

Applicant:

AVT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 877 of 2016

Judgment of:

Judge Nicholls

Hearing date:

2 August 2017

Date of Last Submission:

2 August 2017

Delivered at:

Sydney

Delivered on:

2 August 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mr R White of Mills Oakley

ORDERS

The application made on 14 April 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 877 of 2016

AVT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 April 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and a second bundle of relevant documents also filed and tendered…

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: [2017] FCCA 1984
Decision Date: 2 August 2017

CaseChat Overview and Summary

The applicant, AVT16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant AVT16 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had properly considered all relevant evidence and applied the correct legal principles in assessing AVT16's claims for protection.

Judge Nicholls found that the delegate had failed to adequately consider certain aspects of AVT16's evidence, particularly in relation to the applicant's fear of persecution. The Court held that this failure constituted a jurisdictional error, as it meant the delegate had not properly engaged with the merits of the application as required by the relevant legislation. Consequently, the Minister's decision was set aside. The Court remitted the application for a fresh decision according to law.

Orders