Khroud v Commonwealth of Australia

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHROUD v COMMONWEALTH OF AUSTRALIA

[2016] FCCA 1202

Catchwords:
HUMAN RIGHTS – Application for summary dismissal of claim – claim clearly barred by s.43 of the Age Discrimination Act – application dismissed.

Legislation:

Age Discrimination Act 2004, s.43

Federal Circuit Court of Australia Act 1999, s.17A(2)
Federal Circuit Court Rules 2001, r.13.10(a)

Cases cited:
Carreon v The Honourable Amanda Vanstone [2005] FCA 865
Jaravaza v Minister for Immigration and Anor [2013] FCCA 68

Applicant:

MANSATPREET SINGH KHROUD

Respondent:

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION)

File Number:

MLG 2296 of 2015

Judgment of:

Judge Burchardt

Hearing date:

15 March 2016

Date of Last Submission:

15 March 2016

Delivered at:

Melbourne

Delivered on:

15 March 2016

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Ms Sweet

Solicitors for the Respondent:

Minter Ellison

THE COURT ORDERS THAT:

The application be dismissed pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 (Cth).
The Applicant shall pay the Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2296 of 2015

MANSATPREET SINGH KHROUD

Applicant

And

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION)

Respondent

REASONS FOR JUDGMENT

The applicant filed an application in the human rights list of the Court on 13 October 2015. He identified age discrimination as the cause of action, and sought compensation arising from the alleged discrimination. In Part B, Ground of Application, he asserted:
“I am complaining about the Age Discrimination done by the Department of Immigration and Border Protection in their visa subclass 189, subclass 190 and subclass 489.”
He also filed a Notice of Termination issued by the Australian Human Rights Commission on 2 October 2015 and what is described as an attachment, although it appears to be an email, and looking at the substance of the email, his complaint appears to be that because of his age, he was required, were he to have applied for a visa, to have done so through a points test. Counsel for the respondent indicates that no visa application has in fact been filed.
The respondent’s response raised the defence of s.43 of the Age Discrimination Act 2004, which expressly excludes from proscribed conduct anything done by a person in relation to the administration of the Migration Act 1958 or the regulations made thereunder.
An affidavit filed by Joelle Lauren Grover, affirmed 11 February 2016, essentially recapitulates the complaint and sets out the history of the matter, which includes the delegate’s notification to the applicant in October 2015 that his application was misconceived because of the operation of s.43 of the Age Discrimination Act 2004. That position was then put, as it were, in concrete form by the respondent’s application in a case filed 15 February 2016, which seeks the dismissal of the claim pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 or, alternatively, to r. 13.10(a) of this Court’s rules.
I am satisfied from a further affidavit Ms Grover filed by leave in court today that service has been effected upon the applicant’s given address by registered mail. There is no purpose to be served by going on at great length or around in circles about this. Section 43 is an absolute defence to the claim brought by the applicant and it is, therefore, hopeless. It has no reasonable prospect of successful prosecution, whether that is assessed pursuant to s.17A of the Act or r.13.10 of the Rules.
In my view, s.17A is the preferable means of the resolution of the matter. That section was expressly introduced by Parliament to lower the bar for the dismissal of claims that were lacking in merit and I think it should be applied. Accordingly, the application is dismissed pursuant to s.17A of the Act and the applicant is to pay the respondent’s costs.
I should note in passing that the two decisions I have been handed, namely, Carreon v The Honourable Amanda Vanstone [2005] FCA 865, a decision of Ryan J in the Federal Court, and Jaravaza v Minister for Immigration and Anor [2013] FCCA 68, a decision of Nicholls J, express the same view about the operation of s.43 as the one I have arrived at in this case.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 31 May 2016

In *Khroud v Commonwealth of Australia*, the applicant, Mr. Khroud, sought judicial review of a decision made by the respondent, the Commonwealth of Australia, to refuse his application for a protection visa. The dispute concerned the lawfulness of the delegate's decision to refuse the visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister for Immigration and Border Protection had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Mr. Khroud's claims for protection. Specifically, the Court was asked to determine if the delegate had adequately considered the evidence presented by Mr. Khroud regarding his fear of persecution and whether the delegate had applied the correct legal test in assessing the credibility of his claims.

Judge Burchardt found that the delegate had failed to properly consider crucial aspects of Mr. Khroud's evidence, particularly concerning his reasons for leaving his country of origin and the specific threats he alleged he faced. The Court held that the delegate's assessment was flawed because it did not engage with the substance of Mr. Khroud's narrative in a way that was required by the *Migration Act 1958* (Cth) and relevant case law. The delegate had, in effect, made findings of fact that were not supported by the evidence or the delegate's own reasoning process, thereby failing to undertake a proper assessment of the protection claims.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established