CNC15 v Minister for Immigration - [2016] FCCA 2864

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNC15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2864

Catchwords:
MIGRATION – Extension of time – substantial delay – delay not adequately explained – no reasonable prospect of success in proposed grounds of review – application refused.

Legislation:

Migration Act 1958 (Cth), ss.414, 417, 477 and 477(1) & (2)

Cases cited:

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

Applicant:

CNC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 442 of 2015

Judgment of:

Judge Heffernan

Hearing date:

2 June 2016

Date of Last Submission:

2 June 2016

Delivered at:

Adelaide

Delivered on:

22 November 2016

REPRESENTATION

Counsel for the Applicant:

Ms T D M Heuzenroeder

Solicitors for the Applicant:

Camatta Lempens Lawyers

Counsel for the Respondents:

Mr P d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application for an extension of time in which to file an application for judicial review is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 442 of 2015

CNC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time in which to make an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 23 February 2013. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa. The delegate’s decision was made on 18 October 2012.
The applicant filed his Application for judicial review on 27 November 2015. Pursuant to s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) the applicant had 35 days in which to file an application in this Court for judicial review. His application was filed 2 years and 7 months out of time.
The applicant has filed an Amended Application dated 23 April…

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: [2016] FCCA 2864
Decision Date: 22 November 2016

CaseChat Overview and Summary

CNC15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a national of Iran, alleged persecution based on their political opinion and membership of a particular social group. The Minister's delegate had refused the application, finding that the applicant's claims were not credible and that they had not established a well-founded fear of persecution. The matter came before Judge Heffernan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered all relevant evidence, applied the correct legal principles in assessing the applicant's claims, and whether the reasons provided for the decision were adequate and logically sound. Specifically, the Court was asked to determine if the delegate's adverse credibility findings were reasonably open on the evidence and if the delegate had correctly applied the non-refoulement obligations under international law.

Judge Heffernan found that the delegate had made a jurisdictional error by failing to adequately consider crucial evidence relating to the applicant's alleged persecution. The delegate's reasons for rejecting the applicant's claims were found to be insufficient and did not demonstrate a proper engagement with the entirety of the evidence presented. The Court held that a failure to give proper weight to significant evidence, particularly when it pertains to the core elements of a protection visa claim, can constitute a failure to exercise the jurisdiction conferred by the Migration Act 1958 (Cth).

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

Orders