AYK15 v Minister for Immigration - [2016] FCCA 898

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYK15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 898

Catchwords:
MIGRATION – Considerations regarding award of costs less than as set out in Schedule to Rules of Court – factors relevant to exercise of Court’s discretion including lack of submissions by the Minister in relation to costs.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.79(1) & (3)

Migration Act 1958 (Cth), pt.8B
Federal Circuit Court Rules 2001 (Cth), rr.21.02(2), 44.15(1)
Legal Services Directions 2005 (Cth), Appendix B

Cases cited:
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Cachia v Hanes (1994) 179 CLR 403
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864
Eat Media Pty Ltd v Mulready Media Pty Ltd (No.2) (2010) 267 ALR 573
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Ginos Engineering Pty Ltd v Autodesk Pty Ltd (2008) 249 ALR 371
Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR ¶40-748
Latoudis v Casey (1990) 170 CLR 534
Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412
Noble & Baldwin (No.2) [2011] FMCA 700
Oshlack v Richmond River Council (1998) 193 CLR 72
Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No.2) [2010] FCA 455
SZRTP v Minister for Immigration & Border Protection (2013) 277 FLR 469

Applicant:

AYK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 37 of 2015

Judgment of:

Judge Neville

Hearing date:

27 October 2015

Date of Last Submission:

27 October 2015

Delivered at:

Canberra

Delivered on:

27 October 2015

Written reasons provided on:

22 April 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Self represented

Solicitor/advocate for the First Respondent:

Mrs A Ryan

Solicitors for the First Respondent:

Clayton Utz, Canberra

ORDERS

The Application filed 9 June 2015 be dismissed.
The Applicant is to pay the Respondent’s costs in the amount of $2500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 37 of 2015

AYK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 27^th October 2015, the Court heard, and determined adversely to the Applicant (a student from the People’s Republic of China), an Application that sought (among other things) to quash a decision of the then Refugee Review Tribunal (“the Tribunal”), made on 14^th May 2015.
In short compass, the Court accepted, and in large measure adopted as the Court’s reasons, the submissions provided by the First Respondent Minister (“the Minister”).
Upon delivering oral reasons in relation to the [substantive] Application to Review, the Court also made an Order for costs in favour of the Minister. The amount…

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: [2016] FCCA 898
Decision Date: 27 October 2015

CaseChat Overview and Summary

The applicant, AYK15, 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 AYK15 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. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing AYK15's claims for protection, had failed to properly consider relevant information or had applied the wrong legal test in relation to the assessment of risk of harm.

Judge Neville found that the delegate had failed to adequately consider crucial evidence relating to the applicant's fear of persecution, particularly concerning the specific circumstances and nature of the threats faced. The Court held that this failure constituted a jurisdictional error, as it meant the delegate did not properly engage with the merits of the application as required by the relevant legislation. The principles of administrative law concerning the duty to afford procedural fairness and the proper application of statutory criteria were central to this reasoning.

Consequently, the Court quashed the decision of the Minister to refuse the protection visa and remitted the application to the Minister for redetermination according to law.

Orders