CEV16 v Minister for Immigration - [2017] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEV16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 322

Catchwords:
MIGRATION – Protection (Class XA) visa – Whether the Tribunal failed to comply with its statutory obligations – applicant taken to have received Tribunal letter – Tribunal complied with s.494B and s.494C of the Act – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

CEV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2161 of 2016

Judgment of:

Judge Street

Hearing date:

24 February 2017

Date of Last Submission:

24 February 2017

Delivered at:

Sydney

Delivered on:

24 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms J Strugnell

Minter Ellison Lawyers

ORDERS

The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2161 of 2016

CEV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.467 of the Migration Act 1958 (“the Act”) in respect of a decision of the Administrative Appeals Tribunal made on 2 August 2016 holding that the Tribunal did not have jurisdiction in relation to the decision of the delegate made on 5 May 2016.

The Tribunal

The Tribunal identified that an application for review must be lodged within 28 days pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations1994 (“the Regulations”).
The Tribunal found that the applicant was notified of the decision by letter dated 5 May 2016 dispatched by post. The Tribunal found the applicant had accordingly, been notified of the delegate’s decision refusing to grant the applicant a protection visa on 16 May 2016 and the time within which an application for review had to be made ended on 14 June 2015. The Tribunal found that the applicant had not applied for review until 4 July 2016, and accordingly held it did not have jurisdiction to review the matter.

Before this Court

At the commencement of the hearing, the applicant was informed that this was a hearing to determine whether the applicant had an arguable case of error by the Tribunal. The applicant was informed that this was a show-cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”).
The applicant was informed that the Tribunal had held it had no jurisdiction and the Court was considering whether the applicant had a reasonable argument that the decision of the Tribunal in that regard was unlawful or unfair.
The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the first respondent, and then hear submissions from the…

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 322
Decision Date: 24 February 2017

CaseChat Overview and Summary

CEV16, the applicant, sought judicial review of a decision made by the Minister for Immigration, the respondent, to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection, which were based on allegations of persecution in their country of origin. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims for protection, specifically in relation to the risk of persecution should they be returned to their country of origin. This involved an examination of whether the delegate had applied the correct legal principles in assessing the evidence presented by the applicant and whether the delegate's findings were supported by that evidence.

Judge Street's reasoning focused on the principles of administrative law, particularly the requirement for a decision-maker to undertake a comprehensive and fair assessment of all relevant evidence. The Court reviewed the delegate's decision-making process, considering whether the delegate had adequately addressed the specific grounds of the applicant's claims and whether the adverse credibility findings made by the delegate were reasonably open on the evidence. The Court applied the established legal standard for assessing protection claims, which requires a real chance of persecution.

The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had made adverse credibility findings that were not sufficiently supported by the material before them. Consequently, Judge Street set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders