BRG15 v Minister for Immigration - [2016] FCCA 2586

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRG15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2586

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal – whether review application arrived by express post to GPO Box within relevant time limit – Tribunal has jurisdiction to hear the application – application allowed – remitted to the Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.412(1)(b), 420A

Migration Regulations 1994 (Cth), regs.2.10, 4.31, 4.31AA(1)(c)

Cases cited:

Chen v Minister for Immigration and Border Protection (2013) 216 FCR 241; (2013) 139 ALD 12; [2013] FCAFC 133

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; (2013) 138 ALD 1; (2013) 299 ALR 246; [2013] FCAFC 71

First Applicant:

BRG15

Second Applicant:

BRH15

Third Applicant:

BRI15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1900 of 2015

Judgment of:

Judge McNab

Hearing date:

11 July 2016

Date of Last Submission:

11 July 2016

Delivered at:

Melbourne

Delivered on:

14 October 2016

REPRESENTATION

The Applicants In Person
Counsel for the Respondents:	Ms Mitchell

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue, quashing the decision of the Second Respondent dated 27 October 2015.
A writ of mandamus issue remitting the matter to the Second Respondent, to consider and determine according to law the application made to it by the application for review of the delegate of the First Respondent's decision.
The First Respondent pay the applicant’s reasonable costs (if any).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1900 of 2015

BRG15

First Applicant

BRH15

Second Applicant

BRI15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

By way of an application filed 18 August 2015, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 July 2015, which decided that it did not have jurisdiction to review the decision of the First Respondent, by his delegate, not to grant the applicants’ Protection (Class XA) visas (“visa”) because the application to the Tribunal was lodged out of time.

Background

The factual background relating to the application is relevantly set out in the first respondent’s written submissions filed on 4 July 2016 and is paraphrased as follows:
The first applicant is a 51-year-old citizen of India who first arrived in Australia, accompanied by his wife and son (the second and third applicants respectively), on 7 May 2008 as the holder of a tourist visa. Subsequently on 21 June 2008, the applicant lodged his initial application for a Visa, which was refused by a delegate on 13 October 2008 and the Tribunal affirmed that decision on 19 March 2009.
On 12 December 2013 the applicants lodged the current application for the visa following the Full Federal Court decision of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; (2013) 138 ALD 1; (2013) 299 ALR 246; [2013] FCAFC 71

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: [2016] FCCA 2586
Decision Date: 14 October 2016

CaseChat Overview and Summary

The applicant, BRG15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a visa. The matter came before Judge McNab in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account a mandatory consideration, namely the applicant's claims of past persecution and fear of future persecution in their country of origin, when assessing the application.

Judge McNab found that the delegate's assessment of the applicant's claims had been superficial and did not adequately address the substance of the persecution claims. The Court held that a failure to properly consider such claims, which are mandatory considerations under the relevant migration legislation, constitutes a jurisdictional error. The delegate's reasons for decision did not demonstrate that these critical aspects of the applicant's case had been given the weight they were due.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders