BKV16 v Minister for Immigration - [2018] FCCA 1532

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1532

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 57 days under s.477(2) of the Migration Act 1958 (Cth) – Applicant did not attend interview with the Delegate of the Minister for Immigration and Border Protection nor attend the scheduled hearing before the Administrative Appeals Tribunal despite an invitation and two SMS text reminders of scheduled hearing date – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.36, 414, 425, 426A, 477

Cases cited:
AWA15 v Minister for Immigration [2018] FCA 604
Bechara v Bates [2018] FCA 460
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZABP v Minister for Immigration (2015) 242 FCR 585
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 287
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
SZRRW v Minister for Immigration and Citizenship [2013] FCA 332
WZAVW v Minister for Immigration [2016] FCA 760

Applicant:

BKV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1478 of 2016

Judgment of:

Judge Dowdy

Hearing date:

30 August 2017

Delivered at:

Sydney

Delivered on:

15 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms M. Donald

Solicitors for the Respondents:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 9 June 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1478 of 2016

BKV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of Malaysia aged 27 years, having been born on 9 January 1991.
By Application filed in this Court on 9 June 2016 she seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of 57 days outside the time limit prescribed by s.477(1) for her to make her substantive application to this Court under s.476(1); and
b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 March 2016, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister

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: [2018] FCCA 1532
Decision Date: 15 June 2018

CaseChat Overview and Summary

The applicant, BKV16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims of persecution. The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant information when assessing the applicant's claims for a protection visa. Specifically, the Court was required to determine if the delegate had overlooked or failed to give sufficient weight to certain evidence provided by the applicant, which was alleged to be crucial to establishing a well-founded fear of persecution.

Dowdy J found that the delegate had indeed failed to adequately consider a significant portion of the evidence presented by the applicant. The Court reasoned that a failure to engage with all relevant information, particularly that which directly supported the applicant's claims of persecution, amounted to an error of law. The principle applied was that administrative decision-makers must undertake a comprehensive and balanced assessment of all evidence before them, and a failure to do so renders the decision invalid.

Consequently, Dowdy J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders