Jaskiewicz v Minister for Immigration - [2017] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

JASKIEWICZ v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1947

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal accurately summarised the evidence before it – whether errors in the Administrative Tribunal’s restatement of the applicant’s claims were typographical errors – whether any typographical error mischaracterised or misunderstood the applicant’s claims – whether any typographical error had any effect on the disposition of the Administrative Tribunal’s claims – whether any typographical error rendered meaningless the Administrative Tribunal’s considerations of the applicant’s evidence – whether the Administrative Tribunal’s finding that the applicant intended genuinely to stay in Australia temporarily was open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.2.01, cl.572.223

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95
SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63

Applicant:

KRZYSZTOF JASKIEWICZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2681 of 2015

Judgment of:

Judge Emmett

Hearing date:

16 August 2017

Date of Last Submission:

16 August 2017

Delivered at:

Sydney

Delivered on:

16 August 2017

REPRESENTATION

Applicant appeared in person with a Polish interpreter

Solicitors for the Respondents:

Ms Jennifer Strugnell
Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2681 of 2015

KRZYSZTOF JASKIEWICZ

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.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 2 September 2015 (“the Tribunal”), refusing to grant the applicant a Student (temporary) (Class TU) visa on the basis that the applicant is not intending genuinely to stay in Australia temporarily.
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 a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

On 16 April 2006, the applicant arrived in Australia on a student visa.
On 19 September 2014, the applicant lodged an application for a Student (temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).
On 21 January 2015, the Delegate refused the applicant’s application for a student visa.
On 10 February 2015, the applicant lodged an application for review of the Delegate’s decision by 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: [2017] FCCA 1947
Decision Date: 16 August 2017

CaseChat Overview and Summary

In *Jaskiewicz v Minister for Immigration*, the applicant, Mr Jaskiewicz, 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 had correctly assessed the risk of harm Mr Jaskiewicz would face if returned to his country of origin. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had erred in law by failing to consider all relevant information when assessing Mr Jaskiewicz's claim for a protection visa. Specifically, the Court was asked to determine if the delegate had adequately considered the evidence relating to the applicant's fear of persecution and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Emmett J reasoned that the delegate's assessment of Mr Jaskiewicz's credibility was flawed. His Honour found that the delegate had failed to properly engage with significant portions of the evidence provided by the applicant, particularly concerning the reasons for his fear of persecution. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to consider all relevant evidence and to provide reasons for adverse credibility findings that are logically connected to the evidence. The delegate's failure to do so meant that the decision was not open to be made on the evidence before him.

Consequently, Emmett J ordered that the decision of the Minister for Immigration be set aside and remitted to the Minister for redetermination according to law.

Orders