EYX17 v Minister for Immigration - [2019] FCCA 2748

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYX17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2748

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – application to this court almost one year late – explanation for delay may be adequate – whether grounds of review arguable – Tribunal determining it had no jurisdiction in circumstances where the application was lodged 15 minutes and 27 seconds late.

Legislation:
Acts Interpretation Act 1901, s.36(1)
Migration Act 1958, ss.66, 412, 477(1), 477(2); 494C
Migration Regulations 1994, reg.4.31(2)

Cases cited:
Beni v Minister For Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Home Affairs [2018] FCA 1643
Brown v Minister for Home Affairs (No.2) [2018] FCA 1787
BUY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1787
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
DJD17 v Minister for Immigration and Border Protection [2019] FCCA 2747
FJR18 v Minister for Home Affairs [2019] FCCA 2274
FWQ18 v Minister for Immigration and Border Protection [2019] FCCA 2308

Applicant:

EYX17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2431 of 2017

Judgment of:

Judge Riley

Hearing date:

12 November 2018

Date of last written submission:

11 June 2019

Delivered at:

Melbourne

Delivered on:

26 September 2019

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the first respondent:

Lachlan Bongers

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Clayton Utz

ORDERS

The application for an extension of time filed on 13 November 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2431 of 2017

EYX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time in which to file an application seeking review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal found that it had no jurisdiction to review a decision made by a delegate of the Minister not to grant the applicant a protection visa.
The reason that the Tribunal considered that it had no jurisdiction was that the application to the Tribunal was filed on 23 August 2016 and the Tribunal calculated that the 28 day time limit for filing an application expired on 22 August 2016. That is, the application to the Tribunal was one day late, on the Tribunal’s calculation. More precisely, the application was 15 minutes and 27 seconds late.
The applicant needed an extension of time to file an application to this court because the application was filed almost one year after the expiration of the 35 day time limit.
The applicant was not represented during the proceeding in this court or before the Tribunal.
The matter was listed for a show cause hearing on 12 November 2018. During that hearing, the court raised with the parties the decision…

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 2748
Decision Date: 26 September 2019

CaseChat Overview and Summary

EYX17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged they had been persecuted in their home country due to their political opinions and membership in a particular social group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they would not face persecution if returned to Afghanistan. The matter came before Judge Riley of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to adequately consider all relevant evidence presented by the applicant, including evidence relating to their alleged persecution, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The applicant also contended that the delegate had failed to provide adequate reasons for their decision.

Judge Riley found that the delegate had made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's claims was superficial and failed to engage with significant portions of the evidence. In particular, the delegate's adverse credibility findings were not adequately supported by the reasons provided, and the delegate appeared to have overlooked or undervalued crucial aspects of the applicant's testimony and supporting documentation. The Court reiterated the principle that a delegate must genuinely consider all the evidence before them and provide reasons that are sufficiently detailed to allow for meaningful judicial review. The Court concluded that the delegate's failure to properly consider the evidence and provide adequate reasons constituted a jurisdictional error.

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

Orders