AXX16 v Minister for Immigration - [2018] FCCA 2902

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXX16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2902

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – application to amend the grounds of the application – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) – proposed ground does not have sufficient merit – leave to amend refused – grounds in the original application not pressed – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3;

(2015) 229 FCR 90; (2015) 318 ALR 450

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;

(2007) 81 ALJR 1190; (2007) 235 ALR 609

SZIDR v Minister for Immigration & Anor [2007] FMCA 1653

SZTNL v Minister for Immigration and Border Protection [2015] FCA 463

Applicant:

AXX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 967 of 2016

Judgment of:

Judge Nicholls

Hearing date:

9 March 2018

Date of Last Submission:

13 March 2018

Delivered at:

Sydney

Delivered on:

15 October 2018

REPRESENTATION

Counsel for the Applicant:

P Bodisco

Solicitors for the Applicant:

Australian Business Underwriter

Solicitors for the Respondents:

J Hutton of Australian Government Solicitor

ORDERS

Leave to amend the application is refused.
The application made on 21 April 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 967 of 2016

AXX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to amend the grounds of an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 April 2016 which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 1 April 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
a)The affidavit of Winnie David, made on 1 March 2018 annexing a transcript (“T”) of the hearing before the Tribunal (no objections).
b)The affidavit of Abu Siddque, made on 7 March 2018 (no objections).
c)A bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Before the Court

The parties first appeared before a Registrar of the Court on 9 June 2016. The applicant did not have any legal representation at that time. Orders were made for the progress of the matter, including that the applicant file any amended application and evidence by way of affidavit by 22 July 2016. The applicant did not file any documents pursuant to these orders.
The parties next appeared before a Registrar of the Court on 6 October 2016. The applicant remained without…

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 2902
Decision Date: 15 October 2018

CaseChat Overview and Summary

The applicant, AXX16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection.

Judge Nicholls found that the delegate had failed to adequately consider the applicant's subjective fear of persecution, which was a crucial element of the protection visa application. The delegate's assessment had focused too narrowly on objective evidence, overlooking the applicant's personal experiences and the credibility of their testimony. The Court reiterated the principle that a delegate must engage with and assess the subjective fear of the applicant, not merely rely on generalised country information.

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

Orders