EZO17 v Minister for Immigration - [2018] FCCA 1258

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZO17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1258

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of a protection visa – citizen of Malaysia – whether application to Tribunal made out of time – whether Tribunal had jurisdiction to hear application – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.46, 66, 412, 414, 476, 494B, 494C

Migration Regulations 1994 (Cth), reg.2.16

Cases cited:

EBE17 v Minister for Immigration & Border Protection [2018] FCCA 45 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285

NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
KRJF v Minister for Immigration & Anor [2018] FCCA 150
Rana v Minister of Immigration & Border Protection [2014] FCA 1233

Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129

SZULH v Minister for Immigration & Border Protection [2015] FCA 835

Applicant:

EZO17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 613 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

17 May 2018

Date of Last Submission:

17 May 2018

Delivered at:

Perth

Delivered on:

17 May 2018

REPRESENTATION

Applicant:

No appearance

Counsel for the First Respondent:

Ms K La

For the Second Respondent:

Submitting appearance save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $7328 by 17 June 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 613 of 2017

EZO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(delivered ex tempore and later edited)

Introduction

By way of an application for judicial review (“Judicial Review Application”) filed on 7 November 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 10 October 2017 found that the Tribunal had no jurisdiction to consider the application for review of a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) whereby the Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 146-147. The Court Book has been marked as Exhibit 1.

Background

The background to the Judicial Review Application is as follows:
a)the applicant is a Malaysian citizen who arrived in Australia on 22 January 2017 on a valid travel authority visa: CB 110;
b)on 18 April 2017 the applicant lodged an invalid Protection Visa application, the reason for the invalidity being his failure to provide personal identifiers as prescribed in s.46(2A) of the Migration Act

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 1258
Decision Date: 17 May 2018

CaseChat Overview and Summary

The applicant, EZO17, 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. This involved an examination of whether the delegate of the Minister had properly considered all the relevant evidence and applied the correct legal principles in assessing the applicant's claims for protection. Specifically, the Court considered whether the delegate had failed to adequately assess the risk of harm to the applicant in their country of origin, and whether the delegate had properly applied the non-refoulement obligations under international law.

Judge Lucev found that the delegate had made a jurisdictional error in their assessment of the applicant's claims. The Court reasoned that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding the real chance of persecution. This failure meant that the delegate's decision was not based on a proper understanding of the facts and the applicable legal standards, thereby vitiating the decision. The Court concluded that the decision under review was invalid.

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

Orders