COL16 v Minister for Immigration

[2017] FCCA 3078

FEDERAL CIRCUIT COURT OF AUSTRALIA

COL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3078

Catchwords:
MIGRATION – Application for a protection (Class XA) visa – whether the application was a valid application for protection – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.348

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: COL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2475 of 2016

Judgment of: Judge Manousaridis

Hearing date: 16 November 2017

Date of Last Submission: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Parish Patience Immigration Services Pty Ltd

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2475 of 2016

COL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court today is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal, affirming a decision made by a delegate of the first respondent, the Minister, not to grant the applicant a Protection visa.  That decision was made on 15 August 2016. The sole ground relied upon by the applicant is a ground which counsel for the applicant accepts was the subject of a decision of the Federal Court, more particularly by Burley J of the Federal Court, in BVJ16 v Minister for Immigration and Border Protection.[1]

   [1] [2017] FCA 1205

2. Counsel for the applicant accepts that Burley J’s decision is binding on this Court, and that the necessary consequence of that is that the application before me must be dismissed. Counsel, submits, however, that the decision of Burley J is wrong. Of course, that is only a formal submission to preserve any potential rights from any orders I might make and the submission, of course, is made accepting that the decision of Burley J is binding on this Court.

3. The only matter that was the subject of submissions so far as the applicant’s counsel was concerned was a question of fact and, in particular, the date on which the version of the form that the applicant used to make his application for a Protection visa in the circumstances before me was created. The submission was that I should find that the application form used by the applicant and which was received by the Minister on 20 December 2012 was created after October 1999 and, in particular, is a document which bears a design date of July 2014. That submission as to fact is not disputed by counsel for the Minister and I am prepared to make a finding to that effect, and I do so.

4. The only other issue that arose was one raised by the Minister, and that issue related to there having been issued a certificate pursuant to s.438 of the Migration Act 1958 (Cth). Counsel for the Minister read an affidavit of Ms Jennifer Louise Strugnell which deposed to a certificate under that section having purportedly been issued and which exhibited the documents that are covered by the certificate. The submission made by counsel for the Minister is that those documents had no relevance or could have had no relevance to any of the substantive issues that were before the Tribunal; and, therefore, the fact that a certificate had been issued in relation to those documents could not lead to the conclusion that the Tribunal made any jurisdictional error; and it is otherwise distinguishable from the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection.[2]

   [2] [2016] FCA 1081

5. Counsel for the applicant does not claim that the issue of a s.438 certificate in the circumstances of this case gives rise to any jurisdictional error. I am satisfied from the contents of the documents covered by the s.438 certificate to which I have been taken were not relevant or could not have been relevant to the proceeding before the Tribunal.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 December 2017