LALI v Minister for Immigration - [2015] FCCA 3116

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3116

Catchwords:
MIGRATION – Migration Review Tribunal – tribunal considering that it did not have jurisdiction because application filed out of time – whether notice of delegate’s decision defective such that time had not commenced to run.

Legislation:
Migration Act 1958 ss.66(2)(d)(ii), 127(2)(d)(ii)

Cases cited:
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308, [2003] FCA 1292
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, (1982) 39 ALR 565, (1982) ATPR 40-272, (1982) 4 ALN No 64
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 23 ALR 480
SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129, (2010) 115 ALD 519, (2010) 269 ALR 343, [2010] FCAFC 79

Applicant:

UZAIR LALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1447 of 2014

Judgment of:

Judge Riley

Hearing date:

12 November 2015

Date of last submission:

12 November 2015

Delivered at:

Melbourne

Delivered on:

12 November 2015

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Carina Ford Immigration Lawyers

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 17 July 2014 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.
The name of the proceeding be changed so that the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1447 of 2014

UZAIR LALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”). The applicant was the holder of a student visa. The visa was cancelled by a delegate of the Minister in a decision dated 22 April 2014 on the grounds that the applicant had not been enrolled in a registered course for some time. The applicant told the delegate that he had not been enrolled in a registered course because he had been the victim of sexual assault.
The applicant was notified of the cancellation decision by email dated 22 April 2014. The applicant had seven working days to apply for review by the tribunal. The tribunal calculated that the time limit expired on 2 May 2014. The applicant applied for review online on

19 May 2014. The tribunal considered that it did not have jurisdiction in the matter because the applicant had not applied within the relevant time limit.
The applicant submitted that the notice of cancellation decision was invalid and therefore time had not begun to run and therefore the tribunal did have jurisdiction. The applicant said the notice…

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: [2015] FCCA 3116
Decision Date: 12 November 2015

CaseChat Overview and Summary

In LALI v Minister for Immigration, the applicant, LALI, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant LALI a protection visa. The dispute concerned the lawfulness of the Minister's decision, particularly in relation to the assessment of LALI's claims for protection. The matter was heard by Judge Riley in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to affirm the refusal of the protection visa was affected by jurisdictional error. This involved examining whether the delegate, in considering LALI's claims, had failed to properly consider relevant information or had taken into account irrelevant considerations, thereby failing to exercise their power according to law. Specifically, the Court was asked to determine if the delegate's assessment of LALI's fear of persecution was reasonable and adequately supported by the evidence before them.

Judge Riley's reasoning focused on the principles of administrative law governing the review of decisions made under the *Migration Act 1958* (Cth). The Court applied the standard of review applicable to such decisions, which requires that the decision-maker must genuinely consider the claims made by the applicant. His Honour found that the delegate had failed to adequately engage with crucial aspects of LALI's evidence regarding the risk of harm upon return to their country of origin. This failure constituted a jurisdictional error, as the delegate had not properly exercised the power conferred upon them by the Act.

Consequently, the Court found that the Minister's decision affirming the refusal of the protection visa was vitiated by jurisdictional error. The application for judicial review was therefore granted, and the decision of the Minister was set aside.

Orders