Ekj17 v Minister for Immigration - [2018] FCCA 888

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKJ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 888

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – Tribunal finding that it lacked jurisdiction due to late lodgement of the review application – refusal of an extension of time for show cause application.

Legislation:

Migration Act 1958 (Cth), ss.412, 477, 494B, 494C

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Murphy v Minister for Immigration (2004) 135 FCR 550
Xie v Minister for Immigration [2005] FCAFC 172

Applicant:

EKJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3034 of 2017

Judgment of:

Judge Driver

Hearing date:

12 April 2018

Delivered at:

Sydney

Delivered on:

12 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to s.477 of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3034 of 2017

EKJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 August 2017. The Tribunal found that it did not have jurisdiction in the matter before it.
Background facts are conveniently set out in the Minister’s outline of legal submissions, filed on 5 April 2018.

Facts

The applicant is a citizen of China, and arrived in Australia on a tourist visa on 7 July 2015.[1]
[1] Court Book (CB) 90
On 16 March 2016 the applicant lodged a protection visa application.[2] By that application he stated that he had not received assistance in completing the form.[3] He requested that correspondence relating to the applicant be sent to himself.[4] He listed his “current residential address” as:[5]
[2] CB 1 to 43
[3] CB 10
[4] CB 10
[5] CB 17; see also CB 27, 36
55 George Street
South Hurstville
NSW Postcode: 2221
He listed his postal address as “same as residential”.[6]
[6] CB 17
On 19 May 2016 the Minister’s Department wrote to the applicant at his 55 George Street, Hurstville address, stating that his visa application was invalid and advising that he may want to make another visa application.[7]
[7] CB 44 to 46
The applicant lodged a second application for the visa dated 29 June 2016. The second application contained identical address details.[8]
[8] CB 63, 73 and 82
A delegate of the Minister (delegate) refused the visa on 7 February 2017. This decision was sent under the cover of a notification…

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 888
Decision Date: 12 April 2018

CaseChat Overview and Summary

The applicant, Ekj17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant Ekj17 a protection visa. The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing Ekj17's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Driver J found that the delegate had failed to adequately consider material evidence presented by Ekj17 regarding the risk of harm upon return to their country of origin. The Court held that the delegate's assessment was based on an incomplete and therefore flawed understanding of the evidence, leading to a failure to properly engage with the core of Ekj17's protection claims. This failure constituted a jurisdictional error.

Consequently, Driver J quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders