Etd17 v Minister for Immigration - [2018] FCCA 297

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETD17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 297

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – application in a case for reinstatement of a show cause application dismissed for non attendance – dismissal of reinstatement application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant:

ETD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3283 of 2017

Judgment of:

Judge Driver

Hearing date:

9 February 2018

Delivered at:

Sydney

Delivered on:

9 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

The application in a case filed on 30 January 2018 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 $2,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3283 of 2017

ETD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

I have before me an application in a case filed on 30 January 2018. The applicant seeks reinstatement of a judicial review application filed on 24 October 2017 which was dismissed by a Registrar on account of the applicant’s non attendance at first court date directions.
Background facts relating to this matter are conveniently set out in the Minister’s outline of written submissions filed on 8 February 2018. A chronology appears at [6] of those submissions:
The following chronology is relevant in the present matter and can be discerned from the affidavit of Anna Davyskib, made on 8 February 2018 (Davyskib Affidavit):

Date	Event
24 October 2017	Originating application filed and return date listed for 30 November 2017
28 November 2017	Short minutes of order sent to court with applicant copied
30 November 2017 10.15am	First court date before Registrar Morgan
11.30am	Matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules)
11.40am	Documents sent from Federal Circuit Court “Help Desk” to Associate to Judge Driver seeking adjournment
12.01pm	Documents emailed from Associate to Judge Driver to NSW Registrar Support
12.44pm	Email from NSW Registrar Support to HWL Ebsworth Lawyers
1.42pm	Email from HWL Ebsworth Lawyers to NSW Registrar Support
4 December 2017 10.24am	Matter relisted for 7 December 2017 at 10.15am Email from NSW Registrar Support to HWL Ebsworth Lawyers
5 December 2017	Email from HWL Ebsworth Lawyers to NSW Registrar Support
6 December 2017	Repeated attempts by HWL Ebsworth Lawyer to contact applicant
6 December 2017 8:54pm	Email from Applicant to Associate to Judge Driver, copied to NSW Registrar Support
7 December 2017 9.33am	Email from NSW Registrar Support to HWL Ebsworth Lawyers (attaching applicant's email from 8:54pm 6 December 2017)
9.39am	Email from HWL Ebsworth Lawyers to NSW Registrar Support
10.02am	Email from applicant to NSW Registrar Support
10.15am	Directions hearing before Registrar Morgan

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 297
Decision Date: 9 February 2018

CaseChat Overview and Summary

The applicant, Etd17, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims for protection, specifically relating to the risk of persecution in their country of origin. The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to properly consider and assess the applicant's claims regarding the risk of persecution, particularly in light of the evidence presented. This involved determining whether the delegate had adequately addressed the specific grounds of fear raised by the applicant and whether the assessment of those grounds was reasonable and supported by the evidence.

Driver J found that the delegate had failed to properly consider the applicant's claims. The Court reasoned that the delegate's assessment was flawed because it did not adequately engage with the specific evidence provided by the applicant concerning the nature and extent of the risk of persecution. The delegate's reasoning was found to be superficial and did not demonstrate a proper understanding of the applicant's circumstances or the potential dangers they faced. The Court applied principles of administrative law, emphasizing the need for decision-makers to undertake a thorough and evidenced-based assessment of protection claims.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders