Haq v Minister for Immigration - [2018] FCCA 1523

HAQ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1523

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 refusing the applicant an adjournment of four weeks – whether the Administrative Appeals Tribunal’s decision was reasonable and had an evident and intelligible justification – writs issued.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.31, 65, 363, 420, 476
Migration Regulations 1994 (Cth), reg.2.01, sch. 1, sch.2 cl.457.223

Cases cited:
Chen v Minister for Immigration & Anor [2016] FCCA 2351
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

First Applicant:

MAHMUDUL HAQ

Second Applicant:

MOSAMMAT RAZIA

Third Applicant:

MAHBIRUL HAQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3005 of 2016

Judgment of:

Judge Emmett

Hearing date:

12 June 2018

Date of Last Submission:

12 June 2018

Delivered at:

Sydney

Delivered on:

12 June 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Melvin Newman
(Newman & Associates)

Counsel for the Respondents:

Mr Tom Liu

Solicitors for the Respondents:

Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3005 of 2016

MAHMUDUL HAQ

First Applicant

MOSAMMAT RAZIA

Second Applicant

MAHBIRUL HAQ

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 30 September 2016 (“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 July 2015 refusing the Applicant a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (“Subclass 457 Visa”). The first applicant is the primary applicant (“the Applicant”) and the second and third applicants are his wife and child, respectively whose applications are dependent on those of the Applicant.

Background

On 30 January 2015, the Applicant lodged an application for Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa with the Department of Immigration and Border Protection (“the Department”).
On 1 July 2015, the Delegate refused the Applicant’s application for Subclass 457 Visa.
On 21 July 2015, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 30 September 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant the Applicant a Subclass 457 Visa.
On 1 November 2016,…

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 1523
Decision Date: 12 June 2018

CaseChat Overview and Summary

In *Haq v Minister for Immigration*, the applicant, Mr Haq, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa. The dispute concerned whether Mr Haq had established a well-founded fear of persecution for reasons of his imputed political opinion.

The primary legal issue before Emmett J was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence presented by Mr Haq regarding his fear of persecution. Specifically, the court was asked to determine if the delegate had adequately addressed the applicant's claims about the risk of harm he faced due to his imputed political opinion in his country of origin.

Emmett J found that the delegate had failed to properly consider the evidence. The delegate's assessment of the risk of harm was based on an incomplete and flawed understanding of the applicant's claims. The court applied the principles of administrative law, requiring that decision-makers must genuinely consider all relevant evidence and provide reasons that are not illogical or irrational. The delegate's failure to engage with crucial aspects of Mr Haq's evidence meant that the decision was vitiated by an error of law.

The court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders