DJD17 v Minister for Immigration - [2019] FCCA 2747

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJD17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2747

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the application to the Tribunal was lodged out of time – whether the Tribunal had jurisdiction – whether the notification of the delegate’s decision clearly stated the time within which an application had to be lodged – whether the Tribunal accurately calculated time – notification sent by email – Tribunal considering application was one day late.

Legislation:
Acts Interpretation Act 1901, s.36(1)
Migration Act 1958, ss.66, 412, 494C(5)
Migration Regulations 1994, reg.4.31(2)

Cases cited:

Ali v Minister for Home Affairs [2019] FCA 1102
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BUY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1787
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
FJR18 v Minister for Home Affairs [2019] FCCA 2274
FWQ18 v Minister for Immigration and Border Protection [2019] FCCA 2308
Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; (2003) 73 ALD 351; (2003) 197 ALR 117; (2003) 36 AAR 549; [2003] FCAFC 53

Applicant:

DJD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1617 of 2017

Judgment of:

Judge Riley

Hearing date:

26 September 2018

Date of last submission:

7 June 2019

Delivered at:

Melbourne

Delivered on:

26 September 2019

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Lawson Bayly

Counsel for the first respondent:

Christopher McDermott

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

DLA Piper Australia

ORDER

The application filed on 26 July 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1617 of 2017

DJD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the Minister of Immigration and Border Protection not to grant the applicant a protection visa. The Tribunal calculated that the review application was filed one day late.

The applicant’s claims

The applicant is a Muslim citizen of Malaysia. He claimed in his protection visa application that he wanted to marry a Chinese woman of Christian faith, but that the law in Malaysia was very strict about interfaith marriages. In the interview with the delegate, the applicant said that he broke up with his Chinese girlfriend after he came to Australia. He said his new girlfriend, who he met on a farm in Swan Hill, is a Malaysian Muslim. He said he is visited by a Christian missionary who is teaching him about Christianity. He said he is thinking about converting to Christianity. He said he is worried for his future children if they grow up…

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 2747
Decision Date: 26 September 2019

CaseChat Overview and Summary

DJD17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinions. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Riley J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence presented in support of their claims of persecution, thereby failing to afford procedural fairness. The applicant contended that the delegate's adverse credibility findings were not adequately supported by the material before them and that the delegate had overlooked or misunderstood crucial aspects of the applicant's testimony and supporting documentation.

Riley J found that the delegate's assessment of the applicant's claims contained significant deficiencies. The Court held that the delegate had failed to engage with substantial parts of the evidence, particularly concerning the applicant's alleged experiences of persecution and the political context in their country of origin. The reasoning applied by the delegate was found to be superficial and did not demonstrate a genuine attempt to grapple with the complexities of the applicant's case. Consequently, Riley J concluded that the delegate's decision was affected by jurisdictional error due to a failure to properly consider the evidence and afford procedural fairness.

The Court made orders setting aside the delegate's decision and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders