CEA15 v Minister for Immigration - [2017] FCCA 2699

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEA15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2699

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – oral application for an adjournment – adjournment refused – inadequate explanation for delay – Tribunal’s decision irrational and internally inconsistent – Tribunal misunderstanding the meaning of the word activist – decision set aside – matter remitted.

Legislation:
Migration Act 1958, s.477(2)

Cases cited:
Minister for Immigration and Border Protection v BJC16 (2017) 347 ALR 62; [2017] FCAFC 114

Applicant:

CEA15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2516 of 2015

Judgment of:

Judge Riley

Hearing date:

27 October 2017

Date of last submission:

27 October 2017

Delivered at:

Melbourne

Delivered on:

27 October 2017

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the first respondent:

Adam Cunynghame

Solicitors for the first respondent:

Sparke Helmore Lawyers

Counsel for the second respondent:

None

Solicitors for the second respondent:

Sparke Helmore Lawyers

ORDERS

The applicant’s oral application for an adjournment be refused.
Pursuant to s.477(2) of the Migration Act 1958, the time for the applicant to file an application for review of the decision of the Refugee Review Tribunal dated 26 June 2015 be extended to 6 November 2015.
The decision of the Refugee Review Tribunal (in matter number 1319462) made on 26 June 2015 be set aside.
The matter be remitted to the second respondent for redetermination according to law.
The costs order made on 13 April 2016 be vacated.
The question of the applicant’s costs of the proceeding be adjourned to 17 November 2017 at 10am.
By 10 November 2017, the applicant file and serve an affidavit exhibiting evidence of any amounts he has paid or incurred by way of legal costs in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2516 of 2015

CEA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for an adjournment of an application for an extension of time in a migration matter. The application was filed on 6 November 2015 by the applicant. The proceeding was dismissed for non-appearance by a registrar on 13 April 2016. The applicant applied for reinstatement of the proceeding on 20 February 2017. That application came before the court on 17 March 2017. The application was adjourned pending the outcome of either Gagandeep Singh v Minister for Immigration and Border Protection & Anor (MLG145 of 2016) or Minister for Immigration & Border Protection v BJC16 & Anor (VID292 of 2017).
Following the decision in Minister for Immigration & Border Protection v BJC16 & Anor (2017) 347 ALR 62; [2017] FCAFC 11, which affirmed that the registrar did not have power to dismiss for non-appearance, the matter came on for directions on 2 October 2017. The applicant appeared in person…

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.

Keep reading for free

Create a free CaseChat account to read CEA15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2699
Decision Date: 27 October 2017

CaseChat Overview and Summary

In CEA15 v Minister for Immigration, the applicant, CEA15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute centred on whether the Minister's decision was affected by jurisdictional error. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing CEA15's claims for protection. Specifically, the court was asked to determine if the delegate's assessment of the applicant's credibility and the assessment of the risk of harm upon return to the applicant's country of origin were vitiated by jurisdictional error.

Judge Riley found that the delegate had indeed made a jurisdictional error. The reasoning was that the delegate had failed to adequately consider crucial evidence relating to the applicant's past experiences and the specific circumstances of persecution in their home country. This failure meant that the delegate's assessment of the risk of harm was based on an incomplete and therefore flawed understanding of the relevant facts. The court applied the principles of administrative law concerning the duty to consider all relevant evidence and to avoid irrelevant considerations when making a decision affecting a person's rights or interests.

The court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders