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BRE15 v Minister for Immigration

BRE15 v Minister for Immigration

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Case Copied 20 June 2019 83 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BRE15 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1680

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal –citizen of Vietnam – whether claims considered cumulatively – whether constructive failure to perform review – whether passages copied from previous decision of Administrative Appeals Tribunal – effect of copied passages – whether jurisdictional error – writs issued.

PRACTICE AND PROCEDURE – Application for extension of time – whether affidavit explaining delay necessary – whether non-compliance may be waived – factors for consideration – compliance waived.

WORDS AND PHRASES – “interests of justice” – “interests of the administration of justice” – “administration”.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05

Federal Court Rules 1976 (Cth), O.1, r.8, O.54B, r.2

Federal Court Rules 2011 (Cth), r.1.34

Migration Act 1958 (Cth), Pt.7, ss.36, 91X, 256, 421, 430, 476, 477

Cases cited:

1315946 (Refugee) [2015] AATA 3139
Actew AGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486

ADN15 v Minister for Immigration & Border Protection [2016] FCA 810
AWS15 v Minister for Immigration & Anor [2016] FCCA 971
AZAEA v Minister for Immigration & Anor [2014] FCCA 1083

BHP Billiton Ltd v Schultz & Ors [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 2 DDCR 78; (2004) 211 ALR 523; (2004) Aust Torts Report 81-776

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402
BZAFV v Minister for Immigration & Anor [2014] FCCA 2808
Christie v Harvey (1900) 2 WALR 146
Doyle v Gillespie [2010] ACTSC 21; (2010) 4 ACTLR 188; (2010) 173 ACTR 66
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Hua Wang Bank Berhad v Federal Commissioner of Taxation [2013] FCAFC 28; (2013) 92 ATR 809; (2013) 296 ALR 479
Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Lazar v Taito (Australia) Pty Ltd & Anor (1985) 5 FCR 395; (1985) 67 ALR 652
Le v Minister for Immigration & Ethnic Affairs & Ors (1994) 53 FCR 27
LVR (WA) Pty Ltd & Anor v Administrative Appeals Tribunal & Anor [2012] FCAFC 90; (2012) 203 FCR 166; (2012) 90 ATR 37; (2012) 57 AAR 374; (2012) 289 ALR 244; (2012) 128 ALD 489
Minister for Immigration & Citizenship v SZQHH & Anor [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration & Multicultural & Indigenous Affairs…

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 1680
Decision Date: 20 June 2019

CaseChat Overview and Summary

The applicant, a citizen of Vietnam, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core of the dispute concerned whether the AAT had constructively failed to perform its review function by, among other things, allegedly copying passages from a previous AAT decision without proper consideration of the applicant's claims. The matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had committed jurisdictional error by failing to consider the applicant's claims cumulatively, and whether the AAT's alleged use of copied passages from a prior decision amounted to a constructive failure to perform its review function. The Court also considered whether an extension of time for the application was warranted, and the implications of non-compliance with procedural rules in that regard.

In his reasoning, Judge Lucev determined that the AAT had indeed engaged in a constructive failure to perform its review function. This conclusion was based on the finding that the Tribunal had not adequately considered the applicant's claims in their totality, and that the incorporation of passages from a previous decision, without proper engagement with the specific evidence and arguments presented in the current case, demonstrated a failure to undertake a genuine review. The Court applied principles of administrative law concerning the duty to provide adequate reasons and the requirement for a tribunal to conduct a fresh and comprehensive review of the evidence. The Court also waived the applicant's non-compliance with certain procedural requirements regarding the extension of time application, finding it in the interests of the administration of justice.

The Court ordered that the application for judicial review be granted, and that the decision of the Administrative Appeals Tribunal be quashed.

Orders