EDG17 v Minister for Immigration - [2018] FCCA 3336

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDG17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3336

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – legal unreasonableness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 189, 422B, 424A, 425, 429A

Cases cited:

Applicant:

EDG17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1993 of 2017

Judgment of:

Judge Hartnett

Hearing date:

20 July 2018

Delivered at:

Melbourne

Delivered on:

16 November 2018

REPRESENTATION

The Applicant:

In Person by video-link

Solicitor acting as Counsel for the First Respondent:

Ms Jackson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1993 of 2017

EDG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review filed by the Applicant on 15 September 2017 wherein the Applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 22 August 2017 to affirm the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The grounds of application are as follows:-
“1. The Purported Decision of the Administrative Appeal Tribunal on 22 August 2017 is legally unreasonable in that it is vitiated by Judicial Error and has denied me Procedural Fairness.
2. The Administrative Appeals Tribunal misunderstood my circumstances and the harm I will suffer if I am returned to the country of my nationality.
3. The Administrative Appeals Tribunal failed to take into consideration that Australia has non-refoulment [sic] obligations.
4. The Administrative Appeals Tribunal Ignored relevant information.
5. The Administrative Appeals Tribunal made findings on no facts of law.
6. The Administrative Appeals denied me the right to a fair hearing.”
The First Respondent seeks dismissal of the application and costs. The First Respondent argues that…

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 3336
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, EDG17, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had affirmed a decision by the Minister for Immigration to refuse the applicant’s visa application. The applicant contended that the AAT’s decision was vitiated by a failure to afford procedural fairness and by legal unreasonableness, thereby constituting jurisdictional error.

The central legal issues before the Federal Court were whether the AAT had breached its duty to afford procedural fairness to the applicant and whether the AAT's decision was so unreasonable that it was legally unreasonable. The applicant argued that these failures amounted to jurisdictional error, which would warrant setting aside the AAT's decision.

Justice Hartnett found that the AAT had adequately considered all the material before it and had provided the applicant with sufficient opportunity to present their case. The Court determined that the AAT's reasoning, while perhaps not to the applicant's liking, was not legally unreasonable. The AAT had applied the relevant legal tests and had made findings of fact that were open to it on the evidence. Consequently, the Court concluded that no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders