DDY17 v Minister for Immigration - [2018] FCCA 2788

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDY17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2788

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal made a finding on insufficient evidence or no evidence – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481

SZUTO v Minister for Immigration and Border Protection [2018] FCA 1267 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296

Applicant:

DDY17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2218 of 2017

Judgment of:

Judge Nicholls

Hearing date:

27 August 2018

Date of Last Submission:

27 August 2018

Delivered at:

Sydney

Delivered on:

27 August 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms A Davyskib of Minter Ellison Lawyers

ORDERS

The application made on 14 July 2017 and amended on 9 January 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2218 of 2017

DDY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 14 July 2017 and amended on 9 January 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 June 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

The applicant is a citizen of Indonesia (CB 14). He arrived in Australia as the holder of a visitor visa on 26 November 2014 (CB 14). He made his application for a protection visa on 17 December 2014 (CB 1 to CB 31).
The applicant claimed to fear harm in Indonesia from “corrupted” police officers, gangs and government officers because of what he said were his political views. The applicant claimed to be…

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 2788
Decision Date: 27 August 2018

CaseChat Overview and Summary

The applicant, DDY17, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The Minister for Immigration was the respondent. The core of the dispute concerned whether the AAT had made a finding of fact based on insufficient or no evidence, which the applicant contended constituted jurisdictional error. The matter was heard by Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT's decision contained a jurisdictional error by reason of making a finding on insufficient or no evidence. This required the Court to examine the evidence before the AAT and determine if any findings of fact were so lacking in evidentiary support as to vitiate the Tribunal's decision.

Judge Nicholls found that no jurisdictional error had been revealed. The Court's reasoning focused on the evidence that was before the AAT and concluded that the Tribunal's findings were not demonstrably based on insufficient or no evidence. The application for review was therefore dismissed.

Orders