Daw17 v Minister for Immigration - [2019] FCCA 423

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAW17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 423

Catchwords:
MIGRATION– Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal not to grant to the applicant a protection visa because he did not appear at the scheduled hearing before it – applicant applied for an adjournment of the hearing before the Administrative Appeals Tribunal but it was refused – applicant claims that he was denied procedural fairness by the Administrative Appeals Tribunal by its refusal of his adjournment application and by it failing to consider all of his claims, taking into account irrelevant considerations and not taking into account relevant considerations – decision of Administrative Appeals Tribunal to proceed to dismiss review application in the absence of the applicant under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – applicant did not respond to invitation to reinstate his review application no such denial of procedural fairness made out – no jurisdictional error otherwise established – application for judicial review refused.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.36, 65, 349, 414, 425, 425A, 426A, 427

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

CBN17 v Minister for Immigration and Border Protection [2018] FCA 788
Machmud v Minister for Immigration [2001] 66 ALD 98
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Ponugotti v Minister for Immigration (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323
SZRRW v Minister for Immigration and Citizenship [2013] FCA 332

Applicant:

DAW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2136 of 2017

Judgment of:

Judge Dowdy

Hearing date:

13 March 2018

Delivered at:

Sydney

Delivered on:

1 March 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Ms J. Strugnell

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed in this Court on 23 November 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2136 of 2017

DAW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Malaysia aged 25 years, having been born on 8 August 1993.
By Amended Application filed in this Court on 23 November 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 June 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 March 2017 refusing to grant to him a Protection (Class…

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: [2019] FCCA 423
Decision Date: 1 March 2019

CaseChat Overview and Summary

The applicant, Daw17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse to grant him a protection visa. The AAT's decision was made in the applicant's absence after it refused his application for an adjournment of the scheduled hearing.

The central legal issues before Dowdy J were whether the AAT had denied the applicant procedural fairness by refusing his adjournment request and by failing to consider all of his claims. The applicant also contended that the AAT had taken into account irrelevant considerations and failed to consider relevant ones.

Dowdy J found that the AAT's decision to proceed with the hearing and dismiss the review application in the applicant's absence, pursuant to s 426A of the *Migration Act 1958* (Cth), was not irrational, legally unreasonable, or lacking an intelligible justification. His Honour noted that the applicant had not responded to an invitation to reinstate his review application. Consequently, Dowdy J concluded that no denial of procedural fairness had been made out, nor was any other jurisdictional error established. The application for judicial review was therefore refused.

Orders