GCLV v Minister for Immigration - [2020] FCCA 270

FEDERAL CIRCUIT COURT OF AUSTRALIA

GCLV v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 270

Catchwords:
MIGRATION – Application to extend time for applying for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant protection visa – whether adequate explanation given for delay in applying for remedies – whether there is any merit in ground of substantive application – application for extension of time granted.

MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered there was before it claims that included a claim of a real chance of arbitrary deprivation of life – whether having considered there was such a claim the Tribunal proceeded on the incorrect basis that the arbitrary deprivation of life required an intention to inflict harm – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2), 36(2A), 36(2B), 476, 477(1), 477(2), 501(3A), 501(6), 501(7)(c), 501CA

Cases cited:

SZDCD v Minister for Immigration and Border Protection [2019] FCA 326

SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

Applicant:

GCLV

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1384 of 2019

Judgment of:

Judge Manousaridis

Hearing date:

30 January 2020

Date of Last Submission:

30 January 2020

Delivered at:

Sydney

Delivered on:

14 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr J F Gormly, by direct access

Solicitors for the First Respondent:

Ms A Lucchese of Sparke Helmore Lawyers

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent (Tribunal) made on 12 April 2019 is extended to 6 June 2019.
The decision of the Tribunal made on 12 April 2019 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 21 February 2019 not to grant the applicant a Protection (Class XA) visa is quashed.
The Tribunal review the delegate’s decision according to law.
The first respondent pay the applicant’s costs set in the amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1384 of 2019

GCLV

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The principal question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether, in the course of reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), there was…

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: [2020] FCCA 270
Decision Date: 14 February 2020

CaseChat Overview and Summary

In this matter before the Federal Circuit Court of Australia, the applicant, a national of El Salvador, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a delegate's decision to refuse him a protection visa. The applicant had applied for an extension of time to bring his application for remedies under section 476 of the *Migration Act 1958* (Cth), as he had filed his application 20 days outside the prescribed 35-day period.

The primary legal issues before the Court were whether the applicant had provided an adequate explanation for the delay in filing his application and whether there was sufficient merit in the substantive grounds of his application to warrant an extension of time. Additionally, the Court was required to determine if the Tribunal, in reviewing the delegate's decision, had considered a claim that the applicant faced a real chance of arbitrary deprivation of life if returned to El Salvador, and if so, whether the Tribunal had applied an incorrect understanding of this concept as defined in section 36(2A)(a) of the Act.

Judge Manousaridis found that the applicant's explanation for the delay was adequate, citing his belief that he could not apply to the Court without first paying an outstanding Tribunal fee he could not afford, his detention status, and his lack of legal assistance. The Court was satisfied that it was necessary in the interests of the administration of justice to grant the extension of time. Furthermore, the Court found that the substantive ground of the applicant's application had sufficient merit to justify the extension, even if the explanation for delay had been inadequate. The Court concluded that the Tribunal had proceeded on an incorrect basis regarding the meaning of "arbitrarily deprived of his or her life," constituting a jurisdictional error.

Consequently, the Court quashed the Tribunal's decision and ordered that the Tribunal review the delegate's decision according to law. The Minister was ordered to pay the applicant's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision of the Tribunal made on 12 April 2019 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 21 February 2019 not to grant the applicant a Protection (Class XA) visa is quashed. The Tribunal review the delegate’s decision according to law. The first respondent pay the applicant’s costs set in the amount of $7,467. The principal question that arises in this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether, in the course of reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), there was before the second respondent (Tribunal) a claim that if the applicant were to return to El Salvador there would be a real chance he would be arbitrarily deprived of life. If that question is answered in the affirmative, a second set of questions arises; and these are whether the Tribunal considered that claim and, if it did, whether, as the applicant claims, the Tribunal applied an incorrect understanding of the expression “arbitrarily deprived of his or her life” in s.36(2A)(a) of the Act. This statement of the issues assumes I am satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) for making an application to this Court for a remedy under s.476 of the Act. I am so satisfied. The applicant applied to this Court for relief in relation to the Tribunal’s decision 20 days outside the 35 day period prescribed by s.477(1) of the Act. The applicant has explained his delay. The applicant says he believed he could not apply to this Court without first paying the outstanding Tribunal fee of $1,764 which he could not afford to pay; he is in immigration detention; and he did not have the benefit of legal assistance. I find the explanation adequate, contrary to the submissions of the Minister.[1] [1] First Respondent’s Written Submissions, [17] Further, as should appear from these reasons for judgment, and contrary to the Minister’s submissions,[2] there is sufficient merit in the ground on which the applicant proposes to rely to warrant the making of an order under s.477(2) of the Act. Even if I had found the applicant’s explanation for delay inadequate, the apparent merits of the ground would nevertheless have led me to conclude it is necessary in the interests of the administration of justice to make an order under s.477(2) of the Act extending time. [2] First Respondent’s Written Submissions, [18] I propose, therefore, to order under s.477(2) of the Act that the 35 day period prescribed by s.477(1) of the Act be extended to 6 June 2019. The applicant is a national of El Salvador. He arrived in Australia on 17 July 1983 when he was 22 years of age as the holder of a K4721 visa (Special Humanitarian Programs – Central Americas). In 1994 the applicant was granted a class BF Transitional (Permanent) visa (BF visa).

Ratio Decidendi

Legal Principle Established

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