Awt17 v Minister for Immigration - [2018] FCCA 2055

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWT17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2055

Catchwords:

MIGRATION – Administrative Appeals Tribunal – protection visa – oral application to transfer the matter to the Brisbane registry – application refused – oral application for an adjournment – adjournment refused – application for extension of time of one day – granted by consent – whether the Tribunal made a jurisdictional error when it refused to adjourn the proceeding on the basis of a medical certificate saying the applicant was unfit for work – whether the Tribunal was empowered to determine the matter under s.426A without giving the applicant a hearing.

Legislation:
Migration Act 1958, ss.425, 426A

Cases cited:

BZADA v Minister for Immigration and Citizenship [2013] FCA 1062
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17

Applicant:

AWT17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 421 of 2017

Judgment of:

Judge Riley

Hearing date:

25 July 2018

Date of last submission:

25 July 2018

Delivered at:

Melbourne

Delivered on:

25 July 2018

REPRESENTATION

Advocate for the applicant:

In person by telephone

Solicitors for the applicant:

None

Advocate for the first respondent:	Justin Lipinsky
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Clayton Utz Lawyers

ORDER BY CONSENT

The time for the applicant to file his application for review be extended to 2 March 2017.

ORDERS BY THE COURT

The applicant’s oral application for transfer of the proceeding to Brisbane be refused.
The applicant’s oral application for an adjournment of the proceeding be refused.
The application filed on 2 March 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 421 of 2017

AWT17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

The applicant’s oral application for a transfer to Brisbane

[1] Reasons for judgment were given orally on 25 July 2018. The applicant requested the reasons for judgment on 25 July 2018. Chambers ordered a transcript of the reasons for judgment on 25 July 2018. Auscript provided the transcript of the reasons for judgment on 26 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 27 July 2018.

The applicant in this migration matter indicated in an email to chambers yesterday, 24 July 2018, that he wanted this matter to be transferred to the Brisbane registry of this court.
The substantive application is for review of a decision of the Administrative Appeals Tribunal. The substantive application was filed on 2 March 2017. It was filed by the applicant in person without any indication that there was a lawyer or migration agent assisting him.
The applicant gave his…

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 2055
Decision Date: 25 July 2018

CaseChat Overview and Summary

The applicant, Awt17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant's fear of persecution was well-founded and whether the Minister had adequately considered all relevant information in making the decision. The matter came before Riley J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider the applicant's claims of past persecution and fear of future persecution in their country of origin. Specifically, the Court was asked to determine if the delegate had applied the correct legal test in assessing the credibility of the applicant's evidence and whether the delegate's findings were supported by the evidence before them.

Riley J found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution, which was central to the assessment of a well-founded fear of future persecution. The Court reiterated the principle that a delegate must engage with all relevant evidence and provide reasons that demonstrate such engagement. The failure to properly assess the credibility and significance of the applicant's account of past events meant that the delegate's ultimate conclusion was vitiated by an error of law.

Consequently, Riley J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders