Cuw15 v Minister for Immigration - [2017] FCCA 1575

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUW15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1575

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – assertion of jurisdictional error by Administrative Appeals Tribunal – unparticularised grounds seek merits review – no procedural unfairness – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:

CUX15 v Minister for Immigration and Border Protection [2017] FCCA 1574

MZABP v Minister for Immigration [2015] 242 FCR 585
SZTES v Minister for Immigration [2015] FCAFC 158
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
WZAVL v Minister for Immigration and Border Protection [2016] FCA 334

Applicant:

CUW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3520 of 2015

Judgment of:

Judge Dowdy

Hearing date:

5 July 2016

Date of Last Submission:

2 August 2016

Delivered at:

Sydney

Delivered on:

11 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr D Hughes of Counsel

Solicitors for the Respondents:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 24 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3520 of 2015

CUW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a female citizen of Fiji, aged 57 years, having been born on 27 May 1960.
By Application filed in this Court on 24 December 2015 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 10 February 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 4 March 2014 refusing to grant her a Protection (Class XA) visa (Protection visa).
The Applicant did not comply with s.477(1) of the Migration Act 1958 (Cth) (Act) by filing her Application in this Court within 35 days of the decision of the Tribunal. She needs an extension of time under s.477(2) of some 282 days or some 9 months.
The present Application of CUW15 in this proceeding was heard on the same date as the Application of her husband in the matter of CUX15 v Minister for Immigration and Border Protection [2017] FCCA 1574 and evidence in one case was evidence in the other. The same procedure was adopted in their respective applications for review before the Tribunal. CUX15 also needs an extension of time under s.477(2) of the Act, being in his case also an extension of 282 days.

Grounds for the Granting of a Protection Visa

A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7]:
[5]The criteria…

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 1575
Decision Date: 11 July 2017

CaseChat Overview and Summary

The applicant, Cuw15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3C) of the Migration Act 1958 (Cth). The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse revocation of the visa cancellation was affected by jurisdictional error. Specifically, the Court was required to consider whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when exercising the power under section 501(3C).

Dowdy J found that the Minister's delegate had failed to properly consider the applicant's personal circumstances, including the significant period of time the applicant had spent in Australia, the strength of their ties to the community, and the potential impact of removal on their family members. The delegate's assessment of these factors was found to be superficial and did not adequately engage with the evidence presented. The Court reiterated the principle that when exercising a non-compellable, discretionary power, the decision-maker must genuinely consider all relevant factors placed before them. The failure to do so constituted a jurisdictional error.

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

Orders