Bse16 v Minister for Immigration - [2018] FCCA 2581

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSE16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2581

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in the nature of procedural unfairness in not giving to the applicant enough time to respond to information for the purposes of s.424A and s.424AA of the Migration Act 1958 (Cth) – information referred to did not constitute information for the purposes of s.424A or s.424AA of the Migration Act 1958 (Cth) – in any event the Administrative Appeals Tribunal did advise the applicant that he could seek additional time to comment on or respond but neither applicant nor his registered migration agent present at the hearing before the Administrative Appeals Tribunal indicated that they wanted more time – applicant otherwise seeks to engage in impermissible merits review of the decision of Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed.

Legislation:
Evidence Act 1995 (Cth), s.43
Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205

AWA15 v Minister for Immigration [2018] FCA 604

AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143

Minister for Immigration v Brar (2012) 201 FCR 240

Minister for Immigration v Chamnam You [2008] FCA 241

MZYER v Minister for Immigration (2010) 115 ALD 382

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195

SZBYR v Minister for Immigration and Citizenship(2007) 235 ALR 609

SZMDS v Minister for Immigration (2009) 107 ALD 361

SZNQR v Minister for Immigration [2010] FCA 152

SZPZJ v Minister for Immigration [2012] FCA 18

SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90

SZTNL v Minister for Immigration (2015) 231 FCR 204

SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112

Applicant:

BSE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1763 of 2016

Judgment of:

Judge Dowdy

Hearing date:

7 November 2017

Delivered at:

Sydney

Delivered on:

13 September 2018

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr A. Markus

Solicitor for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 8 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1763 of 2016

BSE16

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 male citizen of Lebanon aged 27 years, having been born on 24 July 1991. He is married to Ms ESB16 (i.e. a pseudonym) whom he married on 16 November 2013 in Australia, and they now have two children.
By Application filed in this Court on 8 July 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal),…

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 2581
Decision Date: 13 September 2018

CaseChat Overview and Summary

The applicant, Bse16, 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 was heard by Dowdy J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing the applicant's eligibility for the visa. Specifically, the Court was asked to determine if the delegate had properly applied the relevant legislative criteria and policy guidelines in reaching their decision.

Dowdy J found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to the applicant's case, and had also given undue weight to information that was not directly pertinent to the assessment criteria. The Court applied the principles of administrative law, particularly the grounds for judicial review concerning jurisdictional error, to determine that the decision-making process was flawed. The Court reasoned that a failure to consider all relevant material and the consideration of irrelevant material constituted a failure to exercise the power conferred by the legislation according to law.

Consequently, Dowdy J quashed the decision of the Minister to refuse the visa and remitted the matter to the Minister for redetermination according to law.

Orders