HAFEEZ v Minister for Immigration - [2018] FCCA 3603

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAFEEZ v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3603

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding that the applicant completed his course requirements after he had lodged his Skilled Provisional Visa application – whether the Administrative Appeals Tribunal erred in finding that the applicant had not met the Australian Study Requirement in cl.485.231(3) of Sch.2 of Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal’s findings were open it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 65, 357A, 359A, 359AA, 360, 474, 476

Migration Regulations 1994 (Cth), regs.1.15F, 201, Sch.2, cl.485.231

Cases cited:

Sapkota v Minister for Immigration and Citizenship [2012] FCA 981
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant:

IJAZ HAFEEZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1428 of 2017

Judgment of:

Judge Emmett

Hearing date:

6 December 2018

Date of Last Submission:

6 December 2018

Delivered at:

Sydney

Delivered on:

6 December 2018

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Mr Justin McGovern
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1428 of 2017

IJAZ HAFEEZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 April 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 1 June 2016 refusing the applicant a Skilled (Provisional) visa.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.

Background

On 1 March 2016, the applicant lodged an application for a Temporary Graduate Visa with the Department of Immigration and Border Protection (“the Department”).
On 1 June 2016, the Delegate refused the applicant’s application for a Skilled Provisional Visa.
On 16 June 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 April 2017, the Tribunal handed down its decision affirming the…

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 3603
Decision Date: 6 December 2018

CaseChat Overview and Summary

The applicant, Mr. Hafeez, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether the Minister's delegate had properly considered the applicant's claims of persecution in his country of origin, specifically in relation to his alleged membership of a particular ethnic group and his fear of persecution by a specific non-state actor. The matter came before Judge Emmett of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved determining whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims. Specifically, the Court had to examine whether the delegate had adequately assessed the credibility of the applicant's claims regarding his ethnicity and the nature of the threat posed by the non-state actor, and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in light of Australia's international obligations.

Judge Emmett found that the delegate had made a jurisdictional error by failing to properly consider the applicant's claims regarding his ethnicity and the specific threat he faced from the non-state actor. The Court reasoned that the delegate had adopted an overly narrow approach to the assessment of the applicant's fear, failing to engage with the substance of the evidence presented. The delegate's assessment was found to be deficient in its consideration of the particular circumstances of the applicant's alleged persecution, thereby failing to discharge the duty to afford procedural fairness. The Court applied the principles of administrative law concerning the proper exercise of statutory power and the requirement for decision-makers to genuinely consider all relevant evidence.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders