Harold v Minister for Home Affairs - [2019] FCCA 196

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAROLD v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 196

Catchwords:
MIGRATION – Applicant convicted of serious criminal offences – circumstances of occurrence of offences “chilling” – no basis for a finding of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359C(2), 260(2)(c), 363A, 116

Cases cited:

Hasram v Minister for Immigration & Citizenship & Anor [2010] 103 FCR 413

Gong v Minister for Immigration & Anor [2016] FCCA 561
Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Applicant:

LANCE MICHAEL ROBERT HAROLD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 562 of 2018

Judgment of:

Judge Egan

Hearing date:

23 January 2019

Date of Last Submission:

23 January 2019

Delivered at:

Brisbane

Delivered on:

23 January 2019

REPRESENTATION

Applicant:

Self-Represented

Solicitors for the Respondents:

Sparke Helmore

Counsel for the Respondents:

Mr Byrnes

ORDERS:

IT IS ORDERED THAT:

The application for review filed on 23 August 2018 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review, fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 562 of 2018

LANCE MICHAEL ROBERT HAROLD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of New Zealand. He was born in 1990. The applicant moved to Australia in October 2015.
On 27 February 2017, the applicant was charged with a number of offences based upon events that occurred on 24 February 2017.
Exhibit 2 is the supplementary court book, which book relevantly included the transcript of proceedings conducted in the criminal jurisdiction of the District Court of Queensland before His Honour Judge Chowdhury, on 9 May 2018, involving the applicant in these proceedings. On page 2 of exhibit 2, the applicant is recorded as having pleaded guilty to the following charges:
(1) That on 24 February 2017 at Logan Reserve in the State of Queensland, you entered the dwelling of Kent Ewan McBlain with intent to commit an indictable offence in the dwelling, and you used actual violence and you were armed with an offensive instrument, and you damaged property;
(2) That on 24 February 2017 at Logan Reserve in the State of Queensland, you unlawfully assaulted Kent Ewan McBlain and did him bodily harm, and you were armed with an offensive instrument.
On page 4 of exhibit 2, at lines 4 - 34, the facts leading to the charges were set out as follows:
MSKOVACK; Your Honour, the defendant was known to the complainant. On the 24th of February 2017 at about 6.30 in the evening, the defendant broke into the complainant's house and demanded to see the complainant's flatmate. When the complainant told the defendant that his flatmate wasn't…

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: [2019] FCCA 196
Decision Date: 23 January 2019

CaseChat Overview and Summary

Harold, the applicant, sought judicial review of a decision by the Minister for Home Affairs, the respondent, to refuse his application for a protection visa. The applicant alleged that the decision was unlawful and unreasonable. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the respondent's decision to refuse the protection visa application was affected by jurisdictional error. This involved examining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection. Specifically, the court considered whether the delegate had adequately assessed the risk of harm the applicant would face if returned to his country of origin, and whether the delegate's findings were supported by the evidence.

Judge Egan found that the delegate had failed to properly consider the applicant's evidence regarding the specific risks he faced, particularly in relation to his alleged persecution. The court determined that the delegate's assessment was superficial and did not engage with the substance of the applicant's claims, thereby constituting a failure to consider relevant considerations. This failure amounted to jurisdictional error.

Consequently, the court made orders quashing the decision of the Minister and remitting the application for a protection visa to the respondent for reconsideration according to law.

Orders