FEZ17 v Minister for Immigration - [2018] FCCA 1216

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEZ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1216

Catchwords:
MIGRATION – Immigration Assessment Authority – application for an extension of time – whether the applicant had a satisfactory explanation for the delay – whether the Authority erred in determining that exceptional circumstances existed to justify the consideration of new information – whether the Authority failed to act in accordance with s.473DC(1)(b) of the Act – no sufficiently arguable case identified by proposed grounds to warrant an extension of time – application for an extension of time under s.477 of the Act is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 57, 473CB, 473DC, 473DD, 473DE, 476, 477

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant:

FEZ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3699 of 2017

Judgment of:

Judge Street

Hearing date:

14 May 2018

Date of Last Submission:

14 May 2018

Delivered at:

Sydney

Delivered on:

14 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges
Hodges Legal

Solicitors for the Respondents:

Mr T Galvin
MinterEllison

ORDERS

Grant leave to the applicant to rely upon the amended application filed in Court initialled by me and dated today.
Grant leave to the applicant to file in Court the applicant’s outline of submissions.
Direct the applicant’s solicitor to file the amended application by 5:00pm today if it is has not already been processed.
The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3699 of 2017

FEZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for an extension of time under s 477 of the Migration Act1958 (Cth) (“the Act”) in respect of proceedings commenced on 21 December 2017. These proceedings are seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 August 2017.
The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against the country. The applicant arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise Visa on 14 July 2016 and attended an interview on 23 November 2016. The applicant claimed to fear harm by the Sri Lankan authorities if he is returned to Sri Lanka on account of his Tamil ethnicity, his imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”) and as a failed asylum seeker who sought refugee status in Australia.
The applicant identified particular events alleged to have occurred in 1995, 2000, 2001, 2006, information from the applicant’s wife, the applicant going into hiding…

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 1216
Decision Date: 14 May 2018

CaseChat Overview and Summary

FEZ17 (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 arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed on internal review. The applicant then brought proceedings in the Federal Circuit and Family Court of Australia.

The primary 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 properly consider the applicant's claims regarding their membership of a particular social group and the real risks of persecution they faced, thereby failing to exercise their jurisdiction according to law. The applicant contended that the delegate had misunderstood or misapplied the criteria for assessing membership of a particular social group and had not adequately assessed the objective likelihood of harm.

Judge Street found that the delegate's assessment of the applicant's claims concerning their membership of a particular social group was inadequate. The delegate's reasoning did not sufficiently engage with the evidence presented by the applicant, particularly in relation to the defining characteristics of the alleged social group and how the applicant fit within it. Consequently, the Court concluded that the delegate had failed to properly consider a material part of the applicant's case, leading to a jurisdictional error. The Court therefore set aside the delegate's decision.

Orders