AZADQ v Minister for Immigration - [2014] FCCA 2623

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADQ v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2623

Catchwords:

MIGRATION – Judicial review of a decision of the Refugee Review Tribunal (RRT) – whether RRT acted unreasonably in deciding not to adjourn a matter before it in circumstances where the applicant indicated to the RRT that he wished to put further information before it – failure to afford natural justice.

Legislation:

Migration Act 1958 (Cth), ss.420, 422B, 425, 427 & Part VII

R v Anderson ; ex parte Ipect-Eyre Pty Ltd (1965) 113 CLR 177
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Steed v The State Government Insurance Commission (1986) 161 CLR 141

Applicant:

AZADQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 163 of 2013

Judgment of:

Judge Simpson

Hearing date:

18 October 2013

Date of Last Submission:

18 October 2013

Delivered at:

Adelaide

Delivered on:

3 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr M Wait

Solicitors for the Applicant:

James Swanson

Counsel for the Respondents:

Mr P d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The decision of the second respondent made 1 May 2013 affirming the decision of the Delegate of the first respondent made on 1 February 2013 is quashed.
The second respondent, differently constituted, shall determine according to law the application made to it to review the decision of the delegate of the first respondent made on 1 February 2013.
The first respondent shall pay the applicant his costs to be agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 163 of 2013

AZADQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application for judicial review of a decision of the Refugee Review Tribunal made under the Migration Act 1958 (Cth) (“the Act”) not to grant the applicant a Protection (Class XA) Visa.
In these reasons, the applicant’s father is referred to as “Mr X”.
Before the commencement of submissions, I heard argument in relation to an affidavit that the applicant wished to rely on. It was an affidavit of James Howard Swanson, solicitor for the applicant, filed on 16 October 2013 (“the Swanson affidavit”) and it was in the following terms:
“1.I am the solicitor for the Applicant. I was first instructed in this matter on 9 July 2013.
2.I swear this affidavit in support of the application in a case filed contemporaneously herewith.
3.On 9 July 2013 the Court gave the Applicant leave to file such further material that he may rely on at the hearing of his application pursuant to section 476 of the Migration Act 1958, such further material to be filed by 6 August 2013.
4.On or about 16 July 2013 the Applicant provided me with the document a true copy of which is annexed hereto…

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: [2014] FCCA 2623
Decision Date: 3 December 2014

CaseChat Overview and Summary

The applicant, AZADQ, sought judicial review of a decision made by the Refugee Review Tribunal (RRT). The core of the dispute concerned the RRT's refusal to grant an adjournment to the applicant, who had indicated a desire to present further information to the Tribunal.

The central legal issue before the Court was whether the RRT had acted unreasonably in refusing the adjournment request, and consequently, whether this refusal amounted to a failure to afford the applicant natural justice.

Justice Simpson found that the RRT's decision not to grant an adjournment was unreasonable. The Tribunal had failed to adequately consider the applicant's stated intention to provide further information, which was relevant to the assessment of his protection claims. By refusing the adjournment without proper consideration of the potential prejudice to the applicant's case, the RRT breached the principles of procedural fairness, a fundamental aspect of natural justice. The Court quashed the RRT's decision.

Orders