Fahme v Minister for Immigration - [2018] FCCA 1180

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAHME v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1180

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal was correct in its conclusion that it had no jurisdiction – application to the Tribunal lodged out of time – the Tribunal had no discretionary power to extend time on compassionate circumstances – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 476, 494C

Migration Regulations 1994, reg 4.10

Applicant:

ADNAN FAHME

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3655 of 2017

Judgment of:

Judge Street

Hearing date:

10 May 2018

Date of Last Submission:

10 May 2018

Delivered at:

Sydney

Delivered on:

10 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms A Lucchese
Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3655 of 2017

ADNAN FAHME

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 October 2017 finding the Tribunal did not have jurisdiction in respect of a decision of the delegate refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa made on 22 August 2017.
The applicant it is a citizen of Lebanon and applied for the visa on 11 August 2017. The delegate found the applicant failed to meet the criteria for the grant of the visa. The application for the medical treatment visa provided an email address with a box ticked by the applicant in relation to receiving communications. On 22 August 2017, the delegate’s decision was sent to the email address identified in the application filed by the applicant.

The Tribunal

The applicant lodged an application for review on 13 September 2017. On 5 October 2017, the Tribunal wrote to the applicant identifying its concern that the application was not a valid application because it had not been lodged within the relevant time limit. The Tribunal explained that the relevant time limit in the letter was 21 days from the date on which the applicant was taken to be notified. The Tribunal referred to the decision having been emailed to applicant and on that basis, the applicant was taken to have been notified on 22 August, and the last day for lodging an application was 12 September 2017. The Tribunal noted that the application had not been lodged until 13 September 2017, which was outside the 21-day period.
The applicant in response to the invitation contended that there were compelling circumstances as to why he had lodged it outside…

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.

Continue reading Fahme v Minister for Immigration

Details

AGLC: FAHME v Minister for Immigration [2018] FCCA 1180
Case: [2018] FCCA 1180
Decision Date: 10 May 2018

CaseChat Overview and Summary

Fahme (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 was of Iranian nationality, claimed to fear persecution in Iran due to his alleged involvement in political activities and his membership in a particular ethnic group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa under the Migration Act 1958 (Cth).

The primary legal issue before the court was whether the delegate's decision was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess all relevant aspects of his protection claims, including his fear of persecution based on his ethnicity and political opinions. The applicant contended that the delegate's adverse credibility findings were not adequately supported by the evidence and that the delegate had applied an incorrect legal standard in assessing the risk of harm.

Judge Street found that the delegate had indeed made a jurisdictional error. The court reasoned that the delegate's assessment of the applicant's claims was superficial and failed to engage with the substance of the evidence presented. The delegate's adverse credibility findings were found to be based on an incomplete and selective reading of the applicant's statements and supporting documents. The court emphasised that a proper assessment of a protection visa claim requires a thorough and holistic consideration of all aspects of the applicant's narrative and the objective country information. The delegate's failure to do so meant that the decision was not one that the delegate was authorised to make.

The court ordered that the decision of the delegate be set aside and remitted to the Minister for Immigration for reconsideration according to law.

Orders