CQV16 v Minister for Immigration - [2018] FCCA 3735

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3735

Catchwords:

MIGRATION – Application to extend time for applying for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time granted.

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether there was operative delay in the Tribunal’s making a decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 416, 417, 418, 422B, 424, 476, 477

Cases cited:

Applicant:

CQV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2535 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

24 November 2017

Date of Last Submission:

12 December 2017

Delivered at:

Sydney

Delivered on:

14 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr P King

Solicitors for the Applicant:

Brett Slater Solicitors

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35-day period provided by s.477(1) of the Act for making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Federal Circuit Court’s jurisdiction under s.476 of the Act in relation to the decision of the second respondent made on 30 June 2016 is extended to 16 September 2016.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2535 of 2016

CQV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application…

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: [2018] FCCA 3735
Decision Date: 14 December 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by CQV16 against the Minister for Immigration. The applicant sought to challenge a decision made by the Tribunal, alleging a number of errors in its assessment of his protection visa application. The case was heard by Judge Manousaridis in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the Tribunal had erred in identifying the correct issues, asked irrelevant questions, failed to provide adequate time for response, ignored relevant material or relied on irrelevant material, adopted a wrong test under the *Migration Act 1958* and *Migration Regulations 1994*, made findings about the reliability of Ukrainian documents, had regard to irrelevant considerations, breached principles of natural justice, exercised power according to policy without regard to the merits, erred in finding no evidence to justify discretion, and rejected relevant evidence. The applicant contended that these alleged errors meant the Tribunal had either taken into account irrelevant matters or misunderstood the legal principles it was required to apply.

Judge Manousaridis considered the applicant's submissions, particularly concerning the Tribunal's alleged undue regard to information from the applicant's first Australian visit rather than the second. The court found that the Tribunal's references to material from the applicant's first protection visa application, its consideration of its powers under section 416 of the Act regarding previous decisions, and its conclusions about the applicant's reasons for leaving Ukraine were not arguable grounds for misdirection. The judge noted that the Tribunal had explicitly stated it relied on material selected by the applicant from previous proceedings, and that its reference to section 416 merely indicated its power to consider previous decisions, not that it had accepted them. Furthermore, the Tribunal's consideration of the applicant's claimed employment with "H" in both his first visa application and the application before the Tribunal was deemed permissible.

The court concluded that the grounds of review, as presented and argued, lacked the necessary particularity to establish that the Tribunal had misdirected itself or taken irrelevant matters into account. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As I have already noted the grounds on which the applicant proposes to rely if I were to make an order under s.477(2) of the Act are set out in the amended application. There are eleven grounds:The Decision Maker1.erred in identifying the correct issues;2.asked incorrect and irrelevant questions;3.failed to provide appropriate time to respond to the questions;4.ignored relevant material and/or in the alternative relied on irrelevant material;5.adopted a wrong test from the provisions of Section 36 Migration Act 1958 and Migration Regulations 19946.erred in finding that documents from Ukraine in general and in particular are not to be relied upon;7.had regard to irrelevant considerations namely the first decision of the Respondent in 2003 and the related events;8.made a decision that was in breach of the principles of natural justice;9.exercised a power of Tribunal in accordance with policy without having regard to the merits of a particular case namely that documents from Ukraine are generally not to be trusted;10.erred in finding that there was no evidence or material before the Tribunal to justify the making of the Tribunal’s discretion; and11.rejected and refused to have regard to the relevant evidence. Considered alone, these grounds are not arguable because they lack particularity. It is necessary, therefore, to set out the submissions made in support of each ground. It will become apparent that in many cases there is no obvious connection between the written submissions and the grounds the submissions are said to support. In his written submissions the applicant seeks to make good this ground by referring to particular findings the Tribunal made.[63] The claim, as I understand it, is that these matters did not relate to the “correct issues” and, by that, I understand the applicant submits that by doing what it did the Tribunal either took into account an irrelevant matter or it otherwise misunderstood the correct legal principles it was required to apply.[64] I will identify each of the things applicant submits the Tribunal did.[63] Applicant’s Outline Submissions, [3][64] Applicant’s Outline Submissions, [4] The first thing is the Tribunal had an undue or any regard to “information obtained by the department with respect to the Applicant’s first Australian visit instead of addressing the actual application relating to the second visit”.[65] The information to which the applicant intends to refer is the information the Tribunal identifies in paragraphs 13, 47, and 118 of its reasons for decision. a)In paragraph 13 of its reasons, the Tribunal refers to material from the first application for a protection visa on which the applicant said he wanted to rely in support of the application for review before the Tribunal. The Tribunal noted that it “has relied upon the material selected by the applicant from the previous proceedings and identified by the applicant in his statements/evidence as the material he seeks to rely upon in the current proceedings”. It is not arguable the Tribunal could not have had regard to this information or that by doing so it misdirected itself.b)In paragraph 47 of its reasons the Tribunal referred to s.416 of the Act, and noted the Tribunal “can decide if it wants to accept what is in the previous decision of 1 March 2007”. This paragraph says nothing more than that the Tribunal could under s.416 of the Act have regard to and consider whether it will accept any decision of a previous Tribunal. There is no suggestion the Tribunal exercised the power conferred by s.416 of the Act to accept a decision of the first, second, or third RRT. It is not arguable, therefore, that by referring to its powers under s.416 the Tribunal misdirected itself in any way.c)In paragraph 118 of its reasons the Tribunal set out its conclusions about the reason for which the applicant claimed he had first left Ukraine. It is not arguable the Tribunal could not have regard to this information or that it misdirected itself by having regard to it. That is particularly so because the reasons for which the applicant claimed he had first left the Ukraine included a claim that he worked for H, and in his form of application for a Protection visa that was before the Tribunal the applicant also claimed to have worked for H.[65] Applicant’s Outline Submissions, [3.a.]