BXD15 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXD15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1359

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – no appearance by or on behalf of the applicant – application dismissed for want of appearance.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 1958 (Cth), s.476

Applicant:

BXD15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2568 of 2015

Judgment of:

Judge Street

Hearing date:

3 June 2016

Date of Last Submission:

3 June 2016

Delivered at:

Sydney

Delivered on:

3 June 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent:

Ms N Maddocks
DLA Piper Australia

ORDERS

The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2568 of 2015

BXD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal delivered on 28 August 2015 affirming the decision not to grant the applicant a Protection (Class XA) visa.
On 26 February 2016 the matter was fixed today for a show cause hearing. The applicant attended at the time the matter was fixed and was given a copy of the orders made by the Court. The matter was listed for 10.15 am and it is now 11.15 am. The matter has been called outside the Court and the applicant has not appeared.
The solicitor for the first respondent has moved for the matter to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. An affidavit has been read in support of that application which also annexes correspondence serving the submissions of the first respondent at the applicant’s address as identified on the application and foreshadowing that the matter would be the subject of an application for dismissal, together with costs, if the applicant did not appear.
I am satisfied that the applicant was well aware of the hearing date. No explanation has been advanced by the applicant as to his inability to attend. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001, and the application is dismissed under r.13.03.C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 16 June 2016

CaseChat Overview and Summary

The applicant, BXD15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give adequate weight to certain aspects of the applicant's evidence and submissions, thereby potentially vitiating the decision-making process.

Judge Street found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's failure to adequately address the applicant's claims regarding past persecution and the well-foundedness of their fear of future persecution. The Court held that a proper assessment required a more thorough engagement with the specific details provided by the applicant and a more explicit articulation of how those details were considered in the ultimate decision. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and submissions put before them, and a failure to do so constitutes a jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established