CJG16 v Minister for Immigration - [2017] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJG16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 453

Catchwords:
MIGRATION – Immigration Assessment Authority – fast track review –Safe Haven Enterprise (subclass 790) visa – extension of time hearing – whether the Authority failed to put new information to the applicant for comment – no jurisdictional error identified – application dismissed.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 473DA, 473DC, 473GB, 476, 477.

Cases cited:

Minister for Immigration v Singh [2016] FCAFC 183

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Applicant:

CJG16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2303 of 2016

Judgment of:

Judge Street

Hearing date:

10 March 2017

Date of Last Submission:

10 March 2017

Delivered at:

Sydney

Delivered on:

10 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application for an extension of time made under s.477 of the Migration Act 1958 (Cth) in the amended application is dismissed.

The Applicant pay the First Respondent’s costs fixed in the amount of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2303 of 2016

CJG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”), made on 14 July 2016, affirming a decision of the delegate not to grant the applicant a protection visa.
The originating application was filed in this Court seven days after the 35-day period provided under s.477 of the Act, and accordingly, the applicant requires an extension of time under s.477 of the Act.
The applicant is a citizen of Sri Lanka and his claims were assessed against that country. The applicant was born in a particular town in the Eastern Province of Sri Lanka and spent much of his life in the district where that town was located. The applicant lived and worked legally in Doha, Qatar for just over a year between 2010 and 2011.
The applicant returned to Sri Lanka in August 2011 and then left Sri Lanka illegally by boat on 4 September 2012. The applicant arrived at the Cocos (Keeling) Islands on 20 September 2012 and was transferred to Christmas Island on 20 September 2012 as an illegal maritime arrival.

The Delegate’s Decision

The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 25 September 2015. The applicant was the subject of a protection visa interview on 2 December 2015. The delegate found the applicant’s application for protection was valid. The delegate identified that the applicant was of Tamil ethnicity and of the Hindu religion.
The applicant claimed to have been taken in for questioning two…

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 453
Decision Date: 10 March 2017

CaseChat Overview and Summary

The applicant, CJG16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's eligibility for the visa, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration.

Judge Street found that the delegate had failed to consider a crucial piece of evidence that was relevant to the applicant's case. This failure amounted to a jurisdictional error, as it meant the delegate had not properly considered all the material before them when making the decision. The Court applied the principles established in cases concerning administrative decision-making, which require decision-makers to consider all relevant factors and disregard irrelevant ones.

Consequently, Judge Street quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders