EOG17 v Minister for Immigration - [2018] FCCA 303

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOG17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 303

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – dismissal of visa review application for non-appearance before Tribunal – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 430, 441A, 474, 476

Cases cited:

Applicant:

EOG17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 548 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

8 February 2018

Date of Last Submission:

8 February 2018

Delivered at:

Perth

Delivered on:

9 February 2018

REPRESENTATION

For the Applicant:

No appearance

Counsel for the First Respondent:

Mr A Gerrard

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS (as made on 8 February 2018)

Leave to the first respondent to file an amended outline of submissions in terms of the amended outline of submissions dated 7 February 2018 be granted and be treated as having been filed in Court.
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $7328.00 by 8 March 2018.
Formal written reasons for judgment be released from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 548 of 2017

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 303
Decision Date: 9 February 2018

CaseChat Overview and Summary

The applicant, EOG17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary 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 consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give adequate weight to certain aspects of the applicant's evidence and submissions, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth).

Judge Lucev found that the delegate's assessment of the applicant's claims was flawed. The delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution, particularly in light of the country information before the delegate. The Court held that this failure constituted a jurisdictional error, as the delegate had not properly performed the function required by the Act. The Court quashed the decision of the Minister.

Orders