EBQ17 v Minister for Immigration - [2018] FCCA 3882

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBQ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3882

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to provide a copy of its statement of reasons within the prescribed time – whether the Tribunal misinterpreted and misconstrued relevant claims – allegation of bias or bad faith – whether the Tribunal erred in failing to consider claims without reasonable cause – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.430, 430A

Cases cited:

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme (2003) 216 CLR 212

SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936

Applicant:

EBQ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2814 of 2017

Judgment of:

Judge Smith

Hearing date:

16 November 2018

Date of Last Submission:

16 November 2018

Delivered at:

Sydney

Delivered on:

16 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Ms S He, Mills Oakley Lawyers

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2814 of 2017

EBQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

This is an application for judicial review of the Administrative Appeals Tribunal made on 7 August 2017. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Malaysia who last arrived in Australia on 23 March 2016. She lodged an application for a protection visa on 21 June 2016. The applicant claims in effect, in support of her application for a protection visa that she borrowed money from loan sharks and that she was beaten and threatened by them when she could not pay the debt due to high interest rates.
The applicant did not seek help from the police because “they say such matters are personal” and also the police are afraid of loan sharks. She said that the loan shark is angry now that she has run away and can find her even if she relocates within Malaysia and if she returns there she will have no work and no money, and still owes money to the loan shark.
On 7 September 2016 a delegate made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for a review of that decision.
The applicant attended a hearing conducted by the Tribunal on 21 July 2017. During that hearing the applicant made a further claim that the loan shark had detained her for four days and forced her into prostitution, however she managed to get away and stay with…

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.

Continue reading EBQ17 v Minister for Immigration

Details

AGLC: EBQ17 v Minister for Immigration [2018] FCCA 3882
Case: [2018] FCCA 3882
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, EBQ17, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around alleged errors made by the AAT in its review process and the subsequent decision.

The court was required to determine several key legal issues. These included whether the AAT had erred by failing to provide a copy of its statement of reasons within the time prescribed by law. Additionally, the court considered whether the AAT had misinterpreted and misconstrued the applicant's relevant claims, and whether the applicant's allegations of bias or bad faith against the Tribunal were substantiated. Finally, the court examined whether the AAT had erred in failing to consider certain claims without reasonable cause.

In its reasoning, the court found that no jurisdictional error had occurred. The court concluded that the AAT's actions did not amount to a failure to provide reasons within the statutory timeframe, nor did it misinterpret or misapply the applicant's claims. The allegations of bias and bad faith were also dismissed, and the court determined that the AAT had not failed to consider claims without reasonable cause.

Consequently, the application for judicial review was dismissed.

Orders