AZAFS v Minister for Immigration - [2015] FCCA 2523

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2523

Catchwords:
MIGRATION – Application for judicial review – application 14 months out of time – consideration of prejudice.

Legislation:

Migration Act 1958 (Cth), s.477(1), (2)

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
Applicant M29 of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 1266
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Minister for Immigration and Ethnics Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

AZAFS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 466 of 2014

Judgment of:

Judge Harland

Hearing date:

12 August 2015

Date of Last Submission:

12 August 2015

Delivered at:

Melbourne

Delivered on:

18 September 2015

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for extension of time is dismissed.
That the second respondent’s name be amended to the Administrative Appeals Tribunal.
That the applicant pay the first respondent’s costs in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 466 of 2014

AZAFS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a Refugee Review Tribunal decision affirming a Delegate’s decision to refuse the applicant’s application for a protection visa. The applicant is a citizen of Afghanistan and arrived in Australia on 20 May 2012. He applied for a protection visa on 26 August 2012. The Delegate issued a decision on 8 July 2013 refusing the applicant’s application. The applicant then applied for a review of that decision to the Refugee Review Tribunal, as it then was.
The applicant had the assistance of a registered migration agent who prepared detailed submissions appearing at pages 190 to 260 of the Court Book, prior to the hearing before the Tribunal. Those submissions include detailed extracts of country information. The applicant appeared with the assistance of his registered migration agent at the Tribunal hearing. The Tribunal’s decision appears at Court Book 264 to 285. The Tribunal made credibility findings against the applicant and discussed the inconsistencies in his version of events and the implausibility of his claims. The Tribunal decision also discusses country information at length, including material provided by his migration agent.
The Tribunal handed down its decision on 18 September 2013. Section 477(1) of the Migration Act 1958 (Cth) requires an applicant seeking a judicial review to file that application within 35 days of the decision.
Section 477(2) of the Migration Act states:
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate…

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: [2015] FCCA 2523
Decision Date: 18 September 2015

CaseChat Overview and Summary

AZAFS (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that he had been persecuted in his home country due to his ethnicity and his perceived association with a particular political group. The Minister's delegate had refused the protection visa application, finding that the applicant had not established a well-founded fear of persecution. The applicant subsequently applied to the Federal Circuit and Family Court of Australia for review of this decision.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered all the evidence before them, including the applicant's claims of persecution, and whether the delegate's findings of fact and application of the law were reasonable and supported by the evidence. Specifically, the Court had to assess whether the delegate had adequately addressed the applicant's claims regarding his ethnicity and alleged political affiliations as grounds for persecution.

Judge Harland found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning his ethnicity and the potential for persecution based on that ethnicity. The delegate's reasons for decision did not sufficiently engage with the specific evidence presented by the applicant that supported his claims of a well-founded fear of persecution. Consequently, the Court determined that the delegate's decision was affected by jurisdictional error.

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

Orders