Eiu17 v Minister for Immigration - [2019] FCCA 1218

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIU17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1218

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not attending Tribunal hearing – Tribunal proceeding to make a decision in his absence – inadequate material provided to support the grant of the visa – whether the Tribunal’s exercise of discretion to proceed in the absence of the applicant miscarried considered – no jurisdictional error.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Sharma (1990) 90 FCR 513

Minister for Immigration v Singh (2014) 231 FCR 437

Minister for Immigration v SZVFW (2018) 357 ALR 408

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

WAEE v Minister for Immigration (2003) 236 FCR 593

Applicant:

EIU17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3001 of 2017

Judgment of:

Judge Driver

Hearing date:

9 May 2019

Delivered at:

Sydney

Delivered on:

9 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms C Winnett

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The application filed on 28 September 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3001 of 2017

EIU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 1 May 2019.
The applicant is a citizen of Malaysia.[1]By an application lodged on 30 January 2017, the applicant applied for a protection visa.[2] The visa application provided the applicant’s email address and stated that the applicant agreed to the Minister’s Department communicating with him via email to that address.[3] For convenience, that email address is described below as the Gmail Address.
[1] Court Book (CB) 107 [6]
[2] CB 1, 53
[3] CB 17
Attached to the applicant’s visa application were a copy of his passport,[4] and a one-page statement (Statement),[5] to which he cross-referred in his visa application as the document setting out his claims for protection.[6] The application form stated that the applicant was ethnically Chinese and a Mandarin speaker[7] and feared returning to Malaysia,[8] but otherwise contained no details on the alleged harm that the applicant feared or his reasons…

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 1218
Decision Date: 9 May 2019

CaseChat Overview and Summary

The applicant, Eiu17, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which refused to grant him a protection visa. Eiu17 claimed he feared harm in Malaysia. The Tribunal had proceeded to make its decision in the applicant's absence, as he did not attend the hearing.

The central legal issue before the Court was whether the Tribunal's exercise of its discretion to proceed with the hearing and make a decision in the absence of the applicant constituted a jurisdictional error. This involved considering whether the Tribunal had adequate material before it to support the grant of the visa and whether its decision to proceed without the applicant's attendance was an improper exercise of its discretion.

Judge Driver found that the Tribunal had not committed jurisdictional error. The Court reasoned that the Tribunal was entitled to proceed in the applicant's absence if it considered it appropriate to do so, particularly where the material before it was insufficient to establish the grounds for the protection visa. The Tribunal's decision to proceed without the applicant was therefore not an error of law.

Orders