DLT16 v Minister for Immigration - [2020] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLT16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 740

Catchwords:
MIGRATION – Application for an extension of time in which to file application for judicial review – whether a sufficient explanation exists for the delay in bringing the application before the Court – application for an extension of time refused – application dismissed with costs.

Legislation:

Migration Act 1958, ss.418(3), 425, 425A(2), 426(1A)(b), 429, 430A, 431, 441A , 474(2), 477(2)

Cases cited:

CQL19 v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2019] FCCA 3460

CQZ15 v Minister for Immigration and Anor [2019] FCCA 2239

Hunter Valley Developments v Cohen [1984] FCA 176

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38

Applicant:

DLT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2507 of 2016

Judgment of:

Judge Blake

Hearing date:

5 March 2020

Date of Last Submission:

5 March 2020

Delivered at:

Melbourne

Delivered on:

5 March 2020

REPRESENTATION

Counsel for the Applicant:

Ms Chan

Solicitors for the Applicant:

JT Lawyers Pty Ltd

Counsel for the Respondents:

Mr Sypott

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed on 17 November 2016 be dismissed.
The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,737.

Orders amended pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 on 11 March 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2507 of 2016

DLT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 10 October 2016. In that decision, the Tribunal confirmed a decision of a delegate of the Minister (‘delegate’) to dismiss the applicant’s application for a Temporary Protection visa for non-appearance.
The relevant background facts, which have largely been summarised from the Minister’s submissions, are as follows. The applicant is a Vietnamese national. He arrived in Australia as an irregular maritime arrival on 8 April 2013.
The applicant lodged an application for the visa the subject of these proceedings on 24 June 2014. This was initially an application for a Protection (Class XA) (Subclass 866) visa, however, following the enactment of legislation, the application became an application for a Temporary (Class XD) 785 visa (‘visa’).
The delegate refused to grant the visa on 4 May 2015. On 7 May 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal. Under the heading entitled ‘Your Contact Details in Australia’ he listed his residential address as ‘[address omitted]’ (‘the nominated address’) and his mobile telephone number as ‘[number omitted]’ (‘the nominated…

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: [2020] FCCA 740
Decision Date: 5 March 2020

CaseChat Overview and Summary

DLT16 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is of Vietnamese nationality, claimed to fear persecution in Vietnam due to his alleged involvement with a banned political organisation. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which prevents the Minister from granting a protection visa to a non-citizen who has had a visa application refused or a visa cancelled, unless certain exceptions apply. The applicant argued that the Minister had failed to consider relevant information and had made an unreasonable decision. The matter came before Judge Blake of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa under s 48B of the *Migration Act 1958* (Cth) was affected by jurisdictional error. Specifically, the applicant contended that the Minister failed to properly consider the evidence of his alleged political activities and the fear of persecution arising therefrom, and that the decision was otherwise so unreasonable that it must have miscarried. The Court was required to determine if the Minister's assessment of the applicant's claims was rational and based on the evidence before him, or if it was so illogical or irrational as to constitute a failure to exercise the power conferred by the legislation.

Judge Blake found that the Minister's delegate had adequately considered the applicant's claims regarding his alleged involvement with the banned organisation and his fear of persecution. The delegate's reasons demonstrated a proper understanding of the evidence presented and applied the relevant legal criteria under s 48B. The Court held that the delegate's assessment, while perhaps not agreeing with the applicant's subjective fears, was nonetheless a rational and defensible conclusion based on the material before him. Therefore, the Court concluded that there was no jurisdictional error and the applicant's application for judicial review was dismissed.

Orders