BGE18 v Minister for Home Affairs - [2018] FCCA 2751

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGE18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2751

Catchwords:
MIGRATION – Application for judicial review an Administrative Appeals Tribunal decision – notification of refusal decision letter sent by registered post to Applicant’s address returned unopened – where application to Tribunal lodged outside of 28 days’ time limit – whether the Tribunal had jurisdiction to hear the application – whether the notification of decision was valid – whether the Applicant was deemed to have received the notification of refusal letter – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 494C, 494B, 476

Migration Regulations1994 (Cth), regs.2.16, 4.31

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.10

Cases cited:

DZAFH v Minister for Immigration [2017] FCCA 387
DZAFH v Minister for Immigration [2017] FCA 984
Murphy v Minister for Immigration [2004] FCA 657; (2004) 135 FCR 550
MZXOT v the Minister for Immigration [2008] HCA 28; (2008) 233 CLR 601
SZOBI v Minister for Immigration (No. 2) [2010] FCAFC 151; (2010) 119 ALD 233
Xie v Minister for Immigration [2005] FCAFC 172

Applicant:

BGE18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 682 of 2018

Judgment of:

Judge Baird

Hearing date:

18 September 2018

Date of Last Submission:

18 September 2018

Delivered at:

Sydney

Delivered on:

18 September 2018

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent:

Mr T. Galvin, MinterEllison

ORDERS

THE COURT NOTES THAT the matter was called within the Court at 10:30am and outside the Court three times at 10:32am and there was no appearance by the Applicant.

Upon being satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding, THE COURT ORDERS THAT:

Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2011 (Cth), the application is summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 682 of 2018

BGE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

This is an application seeking judicial review pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal dated 2 March 2018. The Tribunal found that it did not have jurisdiction to review a decision made by a Delegate of the First Respondent, the Minister for Home Affairs, then the Minister for Immigration and Border Protection, on 21 April 2017 to refuse to grant the Applicant a Protection (Class XA) Visa.
The Applicant lodged his review application with the Tribunal on 13 December 2017, over 6 months outside the prescribed 28-day limit within which to seek review of the Delegate’s decision. The Tribunal has no power to extend time. It has no jurisdiction where the Delegate’s decision was communicated to the Applicant in compliance with the legislative and regulatory regime.

Proceeding before the Tribunal

The Applicant…

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.

Keep reading for free

Create a free CaseChat account to read BGE18 v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2751
Decision Date: 18 September 2018

CaseChat Overview and Summary

The applicant, BGE18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinion. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they had not established a well-founded fear of persecution. The matter came before Judge Baird in the Federal Circuit and Family Court of Australia.

The central 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 the applicant's claims, applied the correct legal principles, and made findings of fact that were supported by the evidence. Specifically, the court had to assess whether the delegate had adequately assessed the applicant's credibility and whether the delegate's adverse credibility findings were reasonable and based on proper reasoning.

Judge Baird found that the delegate had made a jurisdictional error in assessing the applicant's claims. The court reasoned that the delegate's adverse credibility findings were not adequately explained and did not sufficiently engage with the specific evidence provided by the applicant. The delegate had failed to provide a clear and logical explanation for why certain aspects of the applicant's evidence were disbelieved, particularly in relation to the alleged persecution. The court reiterated the principle that when assessing credibility, delegates must provide reasons that demonstrate a proper consideration of the evidence and a logical basis for their conclusions.

Consequently, Judge Baird quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders