AZACG v Minister for Immigration - [2013] FCCA 1364

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1364

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – extension of time sought – matters considered – application for review unlikely to succeed – extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.417, 476, 477(1) &(2)

First Applicant:

AZACG

Second Applicant:

AZACH

Third Applicant:

AZACI

Fourth Applicant:

AZACJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 168 of 2012

Judgment of:

Judge Simpson

Hearing date:

18 June 2013

Date of Last Submission:

18 June 2013

Delivered at:

Adelaide

Delivered on:

17 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondent:

Mr Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application pursuant to s.447(2) of the Migration Act 1958 (Cth) for an extension of time to file an application pursuant to s.476 of the Act is refused.
The applicant shall forthwith pay the first respondent its costs fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 168 of 2012

AZACG

First Applicant

AZACH

Second Applicant

AZACI

Third Applicant

AZACJ

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 15 August 2012 in which the applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 February 2012. The Tribunal affirmed a decision of a delegate of the first respondent (“the Delegate”) dated 9 August 2011 to refuse to grant the applicants’ Protection (Class XA) Visas.

The application to extend time

The application for judicial review was made 133 days after the time prescribed in s.477(1) of the Migration Act 1958 (Cth) (“the Act”). The applicants therefore require an extension of time under s.477(2). The extension of time is opposed by the respondents. The application to this Court was lodged on 15 August 2012. The date of the Tribunal’s decision was 29 February 2012. To be within time, the application had to be lodged by 4 April 2012. By reason…

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: [2013] FCCA 1364
Decision Date: 17 September 2013

CaseChat Overview and Summary

The applicant, AZACG, 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 claims of persecution were credible and whether the Minister had properly considered all relevant information in making the decision. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were: (1) whether the delegate's assessment of the applicant's claims of past persecution was unreasonable, and (2) whether the delegate's assessment of the risk of future persecution was affected by an error of law, specifically in relation to the application of the non-refoulement obligations under international law. The Court was also asked to consider whether the delegate failed to adequately consider the applicant's subjective claims and the objective country information.

Judge Simpson found that the delegate's assessment of the applicant's claims of past persecution was not unreasonable, as it was based on a proper consideration of the evidence. However, the Court determined that the delegate had erred in law by failing to adequately consider the risk of future persecution, particularly in light of the applicant's specific circumstances and the available country information. The delegate's reasoning on this point was found to be insufficient and did not properly engage with the non-refoulement obligations. The Court quashed the decision and remitted the matter to the Minister for redetermination according to law.

Orders