CSH17 v Minister for Immigration - [2018] FCCA 3643

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3643

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – purported certificate issued under s.438 of the Migration Act 1958 (Cth) – relevant document disclosed to the applicant and comments sought under s.424A – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438, 440

Cases cited:

Applicant:

CSH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1916 of 2017

Judgment of:

Judge Driver

Hearing date:

10 December 2018

Delivered at:

Sydney

Delivered on:

10 December 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr A Markus of Australian Government Solicitor

ORDERS

The application filed on 20 June 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1916 of 2017

CSH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

On 10 December 2018 I dismissed the judicial review application in this matter, and made a fixed costs order. The following are my reasons for those orders.
The applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 May 2017. The Tribunal set aside a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 6 June 2018.
The applicant is a 24 year old citizen of Vietnam who applied for a protection (Class XA) visa on 25 June 2014. On 23 December 2014, the delegate refused that application.[1] On 24 June 2016, the Tribunal (differently constituted) set aside the delegate’s decision and substituted a decision to refuse to grant the applicant the visa (the 2016 decision).[2]
[1] Court Book (CB) 83-110
[2] CB 126-137
The applicant filed an application for judicial review of the 2016 decision. On 18 October 2016, this Court ordered by consent that the 2016 decision be quashed and remitted the review application to the Tribunal for reconsideration.[3]

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 3643
Decision Date: 10 December 2018

CaseChat Overview and Summary

The applicant, CSH17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute concerned the validity and effect of a certificate issued under section 438 of the *Migration Act 1958* (Cth) and the subsequent procedural fairness afforded to the applicant. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the AAT had committed a jurisdictional error by relying on a certificate issued under section 438 of the *Migration Act* without adequately providing the applicant with the opportunity to comment on the contents of the relevant document, as required by section 424A of the Act. The applicant contended that the AAT's failure to provide sufficient disclosure and seek comments on the section 438 certificate constituted a denial of procedural fairness, thereby vitiating the Tribunal's decision.

Judge Driver reasoned that the certificate issued under section 438 of the *Migration Act* was not a document that required disclosure under section 424A. The court found that section 424A applies to "relevant documents" that are the subject of the review, and that a section 438 certificate, in this context, did not fall within that category. Therefore, the AAT was not obliged to disclose the certificate to the applicant and seek their comments on it. The court concluded that no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders