AZAFP v Minister for Immigration - [2016] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFP v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 398

Catchwords:
MIGRATION – Application for judicial review of decision of the Refugee Review Tribunal – jurisdictional error – application for extension of time – explanation for delay – prospects of success – application for adjournment on basis of ill health – application supported by a medical certificate – matters to be considered – explanation for delay was that the applicant sought intervention of minister – otherwise no explanation for delay proffered – prospect of success – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36; 48B; 65; 417; 474; 476(1); 477(1); 477(2)

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12

MZZGY v Minister for Immigration & Border Protection [2014] FCA 488
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 599
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Ruddock; Ex parte LX [2003] FCA 561
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Abebe v Commonwealth (1999) 197 CLR 510
SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252
SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158
SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant:

AZAFP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 439 of 2014

Judgment of:

Judge Brown

Hearing date:

11 December 2015

Date of Last Submission:

11 December 2015

Delivered at:

Adelaide

Delivered on:

29 February 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Mr d’Assumpcao

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Submitting appearance

ORDERS

The application for an extension of time, in which to file the application for judicial review of a migration decision, pursuant to section 477(2) of the Migration Act 1958, is dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6,825.00.
The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 439 of 2014

AZAFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application to review a decision of the Refugee Review Tribunal “the Tribunal”, as the Administrative Appeals Tribunal was formally known, made on 19 December 2012.
In that decision, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration & Boarder Protection that the applicant did not meet the criteria for the grant of a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
The applicant is of Hazara ethnicity…

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 398
Decision Date: 29 February 2016

CaseChat Overview and Summary

The applicant, AZAFP, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse AZAFP's application for a Protection visa. The dispute centred on whether the Minister's delegate had properly considered and assessed the evidence presented by AZAFP in support of their claim for protection. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's assessment of AZAFP's claims of persecution was reasonable and whether the delegate had failed to adequately consider all relevant evidence, including country information and the applicant's personal circumstances. Specifically, the Court was asked to determine if the delegate's adverse credibility findings were supported by the evidence and if the delegate had applied the correct legal principles in assessing the risk of harm.

Judge Brown found that the delegate had failed to adequately consider crucial aspects of AZAFP's evidence, particularly concerning the applicant's fear of harm upon return to their country of origin. The delegate's adverse credibility findings were found to be based on an incomplete and, in some respects, erroneous understanding of the evidence presented. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all relevant evidence and to provide reasons that are logically coherent and adequately explain the decision.

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

Orders