Cdu16 v Minister for Immigration - [2017] FCCA 2496

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDU16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2496

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 160 days under s.477(2) of the Migration Act 1958 (Cth) – Applicant did not attend interview with the Delegate of the Minister for Immigration and Border Protection nor attend the scheduled hearing before the Administrative Appeals Tribunal – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Cases cited:

AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144
Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
MZABP v Minister for Immigration (2015) 242 FCR 585
MZALO v Minister for Immigration and Border Protection (2016) 70 AAR 495
NAVX v Minister for Immigration [2004] FCAFC 287
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
SZTES v Minister for Immigration [2015] FCAFC 158

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant:

CDU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2088 of 2016

Judgment of:

Judge Dowdy

Hearing date:

13 December 2016

Delivered at:

Sydney

Delivered on:

20 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms S He

Solicitors for the Respondents:

Mills Oakley Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 4 August 2016 seeking an extension order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2088 of 2016

CDU16

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 Malaysia aged 47 years, having been born on 17 March 1970.
By Application filed in this Court on 4 August 2016 he seeks:
a)an extension of time of 160 days under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) of the Act for him to make his substantive application to this Court under s.476(1); and
b)to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 26 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 14 August 2015 refusing to grant him a…

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: [2017] FCCA 2496
Decision Date: 20 October 2017

CaseChat Overview and Summary

The applicant, Cdu16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Dowdy J in the Federal 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 determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection.

Dowdy J found that the delegate had indeed made a jurisdictional error. The delegate's assessment of the applicant's claims for protection, particularly concerning the risk of persecution, was found to be based on an incorrect understanding of the relevant country information. The Court held that the delegate failed to properly engage with the applicant's evidence and the available country information, leading to an erroneous conclusion regarding the real chance of harm. The principles of administrative law, requiring a decision-maker to consider all relevant material and to base their decision on a correct understanding of the facts and the law, were applied.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders