Axw15 v Minister for Immigration - [2017] FCCA 158

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXW15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 158

Catchwords:

MIGRATION – Review of a decision of the Administrative Appeals Tribunal – application for a Protection (class XA) visa – returned failed asylum seeker – Minister for Immigration and Border Protection v SZQPA [2012] FCA 1025 relied on by the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 430, 476(1)

Cases cited:

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

Applicant:

AXW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1257 of 2015

Judgment of:

Judge Hartnett

Hearing date:	3 November 2016
Delivered at:	Melbourne

Delivered on:

1 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Mr Hill

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1257 of 2015

AXW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By amended application filed 5 July 2016 the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 7 May 2015 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa. The Court has jurisdiction pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant seeks an order that the decision of the Tribunal be quashed and that writs issue. The Respondent seeks that the application be dismissed. Both parties seek costs if successful.
The application sets out two grounds of review wherein it is said the Tribunal constructively failed to exercise its jurisdiction. Ground one is not pressed by the Applicant. The Applicant proceeds with only ground two. That is as follows:-
“2. The Tribunal constructively failed to exercise its jurisdiction, by reason that the Tribunal failed lawfully to consider a claim made by the Applicant to satisfy the criteria for a protection visa under section 36 of the Migration Act 1958 (The Act).
Particulars
a. Another one of the bases upon which the applicant claimed to satisfy the criteria for a protection visa was that, as a failed asylum seeker, he would be detained on his return to Sri Lanka, and…

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 158
Decision Date: 1 February 2017

CaseChat Overview and Summary

The applicant, a returned failed asylum seeker, sought judicial review of a decision made by the Administrative Appeals Tribunal concerning an application for a Protection (class XA) visa. The Minister for Immigration and Border Protection was the respondent. The matter came before Judge Hartnett in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Administrative Appeals Tribunal had committed a jurisdictional error in its review of the applicant's visa application. The applicant relied on the decision of *Minister for Immigration and Border Protection v SZQPA* [2012] FCA 1025 in support of their arguments.

Judge Hartnett found that no jurisdictional error had been made by the Tribunal. The Court applied the principles established in relevant migration law jurisprudence, including the interpretation of the *Migration Act 1958* (Cth) and the criteria for protection visas. Having determined that the Tribunal's decision was not vitiated by jurisdictional error, the application for review was dismissed.

Orders