Cfa16 v Minister for Immigration - [2017] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFA16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 278

Catchwords:

MIGRATION – Protection (Class XA) visa – whether an adjournment application is warranted in the interests of the administration of justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994, Item 1401 of Sch.1.

Cases cited:

BVJ16v Minister for Immigration & Anor [2017] FCCA 178.

Applicant:

CFA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2145 of 2016

Judgment of:

Judge Street

Hearing date:

20 February 2017

Date of Last Submission:

20 February 2017

Delivered at:

Sydney

Delivered on:

20 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr D Robertson of Counsel

Solicitors for the Applicant:

Firmstone & Associates

Solicitors for the Respondents:

Mr A Markus

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2145 of 2016

CFA16

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.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 July 2016 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant is a national of Lebanon who entered Australia last on 2 March 2012 on a student visa. That student visa expired on 23 June 2013. On 20 June 2014 the applicant lodged an application for protection. That application was refused by the delegate on 21 March 2014. The applicant applied for review on 28 November 2014.

Before this Court

A single ground of review is as follows:-
1. The Second Respondent made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no such jurisdiction.
Particulars
a. At the time of the application for the protection visa dated 23 June 2014, the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October I 999;
b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(J )(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) ors 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act, item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; and
c. As a result, by…

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 278
Decision Date: 20 February 2017

CaseChat Overview and Summary

The applicant, Cfa16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a Protection (Class XA) visa. The dispute concerned whether the applicant was entitled to an adjournment of the visa application process in the interests of the administration of justice. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the refusal to grant an adjournment constituted a jurisdictional error. The applicant contended that the denial of an adjournment prevented them from presenting their case effectively, thereby impacting the fairness of the decision-making process.

Judge Street found that no jurisdictional error had been identified. The Court reasoned that the decision to grant or refuse an adjournment is a matter within the discretion of the decision-maker, and such a decision will only be set aside on judicial review if it amounts to a jurisdictional error. In this instance, the Court was not satisfied that the refusal to grant an adjournment was so unreasonable that it amounted to a jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders