Howard v Minister for Immigration - [2017] FCCA 2916

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWARD v MINISTER FOR IMMIGRATION

[2017] FCCA 2916

Catchwords:
MIGRATION – Application for judicial review of decision to cancel non-resident visa – applicant not having been convicted of crime – whether delegates thought she was – delegates not finding applicant charged with or convicted of crime – delegates correctly construing the evidence before them – no jurisdictional error established.

Legislation:

Civil Procedure Act 2010 (Vic), ss.61, 63

Migration Act 1958 (Cth), ss.116, 128, 129, 131

Gong v Minister for Immigration and Border Protection [2016] FCCA 561

Applicant:

LINDA HOWARD

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

MLG 2369 of 2017

Judgment of:

Judge Burchardt

Hearing date:

20 November 2017

Date of Last Submission:

20 November 2017

Delivered at:

Dandenong

Delivered on:

29 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Parncutt

Solicitors for the Applicant:

Kiatos & Co

Counsel for the Respondent:

Mr Yuile

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 3 November 2017 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2369 of 2017

LINDA HOWARD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

By an application filed on 3 November 2017, the applicant seeks to quash decisions of delegates of the respondent which had the effect of cancelling the applicant’s subclass 155 Resident Return visa. It should be noted that an extension of time has been agreed between the parties and that an earlier application to the Federal Court is not now of any moment.
The matter was listed as a matter of urgency because the Court was informed, without challenge, that the applicant is in Thailand on a visa due to expire on or about 20 November 2017. According to the affidavit of her solicitor, Con Kiatos, sworn 3 November 2017, “She had nowhere else to live, having little contact with the United States. She is domiciled in Australia and has a house of her own in Docklands, Victoria, with a typical network of friends.”
It is common cause that the applicant’s visa was cancelled by a delegate of the respondent while she was overseas. She applied for revocation of that decision and that application was unsuccessful. It was those decisions that gave rise to this application.
In affidavit material of her solicitor, her written submissions and in oral submissions made at the Court, the primary assertion made by the applicant is that set out at paragraph 1 of the applicant’s written submissions as follows:
No jurisdictional issue or factual information has been raised by the respondent’s Response which contradicts the fact that the primary factual premise upon which the decision being reviewed does not exist, namely, that Mrs Howard purportedly committed a crime.
Put shortly, it is submitted that the materials before the two decision‑makers on no view supported any finding that the applicant had committed, let alone been charged or convicted of, any crime.…

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: [2017] FCCA 2916
Decision Date: 29 November 2017

CaseChat Overview and Summary

The applicant, Mr Howard, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute concerned whether Mr Howard met the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that Mr Howard did not hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by section 36(2)(a) of the *Migration Act*. This involved an assessment of the evidence presented by Mr Howard regarding his alleged experiences and the credibility of his claims.

Judge Burchardt considered the evidence and the delegate's reasons for decision. The Court applied the principles established in cases concerning the assessment of well-founded fear, including the need to consider the subjective fear of the applicant and the objective reasonableness of that fear in all the circumstances. The Court found that the delegate had failed to adequately consider certain aspects of Mr Howard's evidence and had made an error in assessing the credibility of his claims. Consequently, the delegate's decision was found to be affected by jurisdictional error.

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

Orders