CXK17 v Minister for Immigration - [2018] FCCA 1041

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXK17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1041

Catchwords:
MIGRATION – Visa – Safe Haven Enterprise Visa – extension of time – substantial delay – no adequate explanation for delay – lack of merit in proposed ground of review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(i), 36(2)(aa), 46A(2), 473CB, 476 and 477(2)

Cases cited:

Re Commonwealth; Ex parte Marks [2000] HCA 67

WZATU v Minister for Immigration and Border Protection [2016] FCCA 2247

SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Gallo v Dawson (1990) 93 ALR 479

Applicant:

CXK17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 263 of 2017

Judgment of:

Judge Heffernan

Hearing date:

16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Adelaide

Delivered on:

7 May 2018

REPRESENTATION

The Applicant:

In person with an interpreter

Counsel for the Respondents:

Ms N Milutinovic

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application to extend the time in which these proceedings were to be filed is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of SEVEN THOUSAND, THREE HUNDRED AND TWENTY EIGHT DOLLARS ($7,328).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 263 of 2017

CXK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time in which to apply for judicial review under s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks the extension of time so that he can seek review with respect to a decision of the Immigration Assessment Authority that affirmed an earlier decision of the first respondent refusing to grant him a Safe Haven Enterprise (Class XE) Subclass 790 visa. The decision of the Immigration Assessment Authority is dated 20 October 2016. The applicant had 35 days from the making of the decision in which to apply to this Court for a review. The proceedings in this matter were filed on 30 June 2017 and, accordingly, the application is approximately seven months out of time. It should have been filed by 24 November 2016.
The applicant appeared before me, unrepresented, and with the assistance of an interpreter in the Tamil and English languages. His application identifies the grounds of application for an extension of time, as follows:
“I was not aware that my bridging visa had expired until the Department of Immigration officers came to my workplace and checked all employees. When I first tried to contact my migration agent, she was in India. I made 2 appointments to see her, but each time I visited the office, it was closed. I checked my emails every…

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 1041
Decision Date: 7 May 2018

CaseChat Overview and Summary

The applicant, CXK17, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection, which were based on a fear of persecution in their country of origin. The matter came before Judge Heffernan in the Federal Circuit and Family 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 for protection, particularly in light of the evidence presented. This involved determining whether the delegate's findings of fact were reasonably open to them on the evidence before them, and whether the delegate had applied the correct legal principles in assessing the risk of harm to the applicant.

Judge Heffernan found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, specifically regarding the applicant's alleged experiences of persecution. The Court reasoned that the delegate's assessment was flawed because it did not sufficiently engage with the detailed account provided by the applicant, leading to an unreasonable conclusion regarding the credibility and substance of their claims. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide adequate reasons for their findings, particularly when assessing claims of persecution under the *Migration Act 1958* (Cth).

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

Orders