Cwe16 v Minister for Immigration - [2018] FCCA 2677

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWE16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2677

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for extension of time under s.477(2) of the Migration Act 1958 (Cth) needed of 357 days – no adequate or reasonable explanation for failure to file application under s.477(1) of the Migration Act 1958 (Cth) – proposed substantive grounds not reasonably arguable and without reasonable prospects of success – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.417, 477

Cases cited:
AWA15 v Minister for Immigration [2018] FCA 604
Bechara v Bates [2018] FCA 460

Applicant:

CWE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2698 of 2016

Judgment of:

Judge Dowdy

Hearing date:

13 September 2018

Delivered at:

Sydney

Delivered on:

13 September 2018

REPRESENTATION

The Applicant appeared
in person

Counsel for the First Respondent:

Mr J. Lambe

Solicitors for the First Respondent:

HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 6 October 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3667.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth), the applicant have up to including 18 October 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2698 of 2016

CWE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

The Applicant in this matter is a male citizen of Egypt aged 34 years, having been born on 6 July 1984.
By Application filed in this Court on 6 October 2016, he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of 357 days outside the time limit prescribed by s.477(1) for the bringing of an application in this Court; and
b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 4 September 2015, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 June 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant has travelled to Australia on two occasions. On the first occasion, he travelled to Australia on 2 August 2012 on a three month multiple entry Tourist (Class TR) (Subclass 676) visa, which had been granted to him offshore on 6 May 2012. He departed Australia on 22 October 2012. Then on the second occasion the Applicant travelled to Australia on 30 June 2013 on a three month single entry Tourist (Class FA) (Subclass 600) visa granted offshore…

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.

Keep reading for free

Create a free CaseChat account to read Cwe16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2677
Decision Date: 13 September 2018

CaseChat Overview and Summary

The applicant, Cwe16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the assessment of the applicant's claims of persecution in their country of origin. The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and well-founded fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had adequately addressed the specific circumstances of the applicant's alleged experiences and whether the assessment of the risk of future harm was reasonable and supported by the evidence.

Dowdy J found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution. The Court held that the delegate's reasoning was flawed in its assessment of the credibility of the applicant's claims and in its application of the relevant country information. The legal principle applied was that a decision-maker must engage with and properly assess all relevant evidence presented by an applicant, particularly when assessing claims of persecution for the purposes of a protection visa. The Court concluded that the delegate's decision was affected by jurisdictional error.

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

Orders