FMV17 v Minister for Immigration - [2019] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMV17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 186

Catchwords:
MIGRATION – Administrative Appeals Tribunal – cancellation of bridging (subclass 050) visa – extension of time application – extension granted – substantive hearing – whether Tribunal misapplied s.116(1)(e) of the Migration Act 1958, which concerns the good order of the Australian community, by considering that the provision would be satisfied by the adverse reactions of members of the community, rather than by the actions of the visa holder himself – whether the adverse reactions of members of the community must be reasonable to satisfy the provision – whether the Tribunal was obliged to identify the segment of the Australian community the good order of which might be at risk – whether the Tribunal fettered its discretion – whether the Tribunal’s decision lacked any evidence or intelligible basis – whether the Tribunal failed to consider the medical evidence before it.

Legislation:
Migration Act 1958, ss.116, 477(1), 477(2), 501
Federal Circuit Court Rules 2001, r.44.05(2)(c)

Cases cited:

ATR15 v Minister for Immigration and Border Protection [2016] FCCA 1089
DJY18 v Minister for Home Affairs & Anor [2019] FCCA 185
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624
Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 53 ALD 32; (1998) 159 ALR 405

Applicant:

FMV17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2752 of 2017

Judgment of:

Judge Riley

Hearing date:

13 November 2018

Date of last submission:

13 November 2018

Delivered at:

Melbourne

Delivered on:

1 February 2019

REPRESENTATION

Counsel for the applicant:

Siobhan Kelly

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the first respondent:	Graeme Hill
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Sparke Helmore

ORDERS

The application filed on 15 December 2017 and amended on 23 October 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2752 of 2017

FMV17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

There was before the court an application for an extension of time in which to file an application seeking review of a decision made by the Administrative Appeals Tribunal, and, if the extension of time were granted, an application for review of a decision made by the Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection to cancel the applicant’s bridging (subclass 050) visa.
At the hearing, the Minister said he was not able to consent to the extension of time being granted, as the applicant had not complied…

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.

Keep reading for free

Create a free CaseChat account to read FMV17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 186
Decision Date: 1 February 2019

CaseChat Overview and Summary

The applicant, FMV17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard by Judge Riley in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to adequately consider the applicant's claims of persecution, thereby failing to satisfy the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Riley found that the delegate had failed to properly assess the applicant's claims regarding past persecution and the real chance of future persecution. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a thorough and objective evaluation of all relevant evidence. The delegate's assessment was found to be superficial and did not engage with the specific details of the applicant's evidence, leading to a conclusion that jurisdictional error had occurred.

Consequently, Judge Riley quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders