Grey v Minister for Immigration - [2018] FCCA 1564

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREY v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1564

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – where no fee paid with application – where fee reduction sought – where no fee paid at all – where Tribunal determined that no valid application had been commenced.

Legislation:

Migration Act 1958 (Cth), ss.116, 338(3), 339(1) and 345

Migration Regulations 1994 (Cth): reg.4.13

Cases cited:

Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364

Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174

Parmar v Minister for Immigration [2018] FCA 502

Applicant:

NEHA WIREMU TURUMANU GREY

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 1186 of 2017

Judgment of:

Judge Jarrett

Hearing date:

8 June 2018

Date of Last Submission:

8 June 2018

Delivered at:

Brisbane

Delivered on:

8 June 2018

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent:

Ms Forder

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application filed 1 December 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the Application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1186 of 2017

NEHA WIREMU TURUMANU GREY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of New Zealand who initially arrived in Australia in August of 2000.
He has been in Australia using a Special Category Temporary (Class TY) (subclass 444) visa which has, from time to time, been renewed. The last time he was granted such a visa was in October, 2014. On 10 July, 2017 a delegate of the first respondent issued a notice of intention to consider cancellation of the applicant’s visa under s.116 of the Migration Act 1958 (Cth) and the applicant was invited to comment on that consideration. He did not provide any comments or submissions. On 25 August, 2017 a delegate of the first respondent determined to cancel the applicant’s visa pursuant to s.116(1)(e)(i) of the Act.
On 7 September, 2017 the applicant applied to the second respondent for a review of the delegate’s decision. The application required payment of a fee, although the applicant could also apply for a reduction of that fee by 50 percent. He submitted a request for a fee reduction. He also sought an adjournment of his hearing while some outstanding criminal charges he was facing were finalised. There is ample evidence that demonstrates that he did not pay either the full application fee or the reduced application fee, pending approval of his fee reduction application.
Between 8 September and 12 September, 2017 the second respondent, by its employees, tried to bring to the applicant’s attention that he needed to pay the application fee or a reduced application fee. He was told about the possible consequences if…

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 1564
Decision Date: 8 June 2018

CaseChat Overview and Summary

In *Grey v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision later affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Court.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider and assess the applicant's claims regarding past persecution and the risk of future persecution. Specifically, the Court was asked to determine if the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing the applicant's fear of persecution, including whether the Tribunal had given sufficient weight to the subjective fear of the applicant and the objective circumstances in their country of origin.

Judge Jarrett found that the Tribunal had made a jurisdictional error. The Court reasoned that the Tribunal had failed to properly engage with the applicant's evidence concerning specific incidents of persecution and had not adequately explained why it discounted certain aspects of the applicant's testimony. The Court held that a proper assessment of a protection visa claim requires a holistic consideration of all available evidence, including the applicant's subjective fear, and that the Tribunal's reasons did not demonstrate such a comprehensive evaluation. The Court concluded that the Tribunal's decision was vitiated by a failure to provide adequate reasons for its findings, thereby constituting an error of law.

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

Orders