BQQ18 v Minister for Home Affairs - [2019] FCCA 148

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQQ18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 148

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424AA, 425

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v Le (2007) 242 ALR 455
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v SZIAI (2009) 83 ALJR 1123
NAHI v Minister for Immigration [2004] FCAFC 10
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZBYR v Minister for Immigration [2007] HCA 26
SZJBA v Minister for Immigration [2007] FCA 1592
Tran v Minister for Immigration [2004] FCAFC 297

Applicant:

BQQ18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 898 of 2018

Judgment of:

Judge Driver

Hearing date:

29 January 2019

Delivered at:

Sydney

Delivered on:

29 January 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Butler of Sparke Helmore

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 898 of 2018

BQQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 March 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed 21 January 2019.
The applicant, a citizen of Fiji, arrived in Australia on 8 October 2014 as the holder of a visitor (FA-600) visa.[1] On 7 January 2015, he applied for a protection visa.[2] On 16 February 2015, he made a second protection visa application.[3] On 18 February 2015, the applicant wrote to the Minister’s Department, withdrawing the first application[4] and the Minister’s Department accepted that withdrawal on the same day.[5] On 13 November 2015, the delegate refused to grant the visa.[6]
[1] Court Book (CB) 269
[2] CB 4
[3] CB 155
[4] CB 200
[5] CB 201
[6] CB 269
On 3 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision.[7] On 19 December 2017, the Tribunal invited the applicant to a hearing.[8] On 23 January 2018, the applicant appeared before the Tribunal with the assistance of a telephone interpreter in the Fijian language.[9] Due to difficulties with this arrangement a further hearing was conducted on 5 March 2018, with the assistance of an…

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: [2019] FCCA 148
Decision Date: 29 January 2019

CaseChat Overview and Summary

The applicant, BQQ18, sought judicial review of a decision by the Minister for Home Affairs. The dispute concerned the refusal of a protection visa. The matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal (AAT) had made a jurisdictional error in its interlocutory dismissal of the applicant's show cause application. The applicant contended that this dismissal constituted an arguable case of jurisdictional error, thereby warranting further review.

Driver J found that the applicant had not established an arguable case of jurisdictional error. The Court reasoned that the AAT's decision to dismiss the show cause application was a procedural step within the Tribunal's broader jurisdiction to determine the protection visa application. The Court concluded that the applicant had failed to demonstrate that the AAT had acted outside its legal authority or failed to fulfil a fundamental condition of its exercise.

Consequently, the Court ordered the dismissal of the application for judicial review.

Orders