Lium v Minister for Immigration - [2018] FCCA 2916

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIUM v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2916

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal member failed to give adequate reasons – whether Administrative Appeals Tribunal constructively failed to exercise jurisdiction by failing to consider fundamental aspects of the applicant’s case – whether Administrative Appeals Tribunal gave proper genuine and realistic consideration to the material before it – whether Administrative Appeals Tribunal actively engaged in an intellectual process in considering the merits of the applicant’s case – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.2 cls.602.212, 602.213, sch.3 cl.3001

Cases cited:

BZD17 v Minister for Immigration and Border Protection [2017] FCCA 3186

Applicant:

SEE SIANG LIUM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3680 of 2016

Judgment of:

Judge Emmett

Hearing date:

15 October 2018

Date of Last Submission:

15 October 2018

Delivered at:

Sydney

Delivered on:

15 October 2018

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Ms Elodie Cheesman
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3680 of 2016

SEE SIANG LIUM

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.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 December 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made 23 May 2016 refusing the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (“Medical Treatment Visa”).
The Applicant was unrepresented before this Court, although had the assistance of an interpreter.
On 13 April 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The Applicant confirmed that he has not filed any documents either in accordance with those directions or otherwise in support of his application.
The Applicant confirmed that he continues to rely on the grounds identified in his initiating application filed on 21 December 2016. Under the heading “Grounds of application”, the Applicant identified the following complaints:
“1, I am a Malaysia citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.
2, AAT refused my visa simply because I did not have the visa…

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: [2018] FCCA 2916
Decision Date: 15 October 2018

CaseChat Overview and Summary

Lium (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is a citizen of Vietnam, claimed to fear persecution in Vietnam on the basis of his political opinion. The Minister had refused the protection visa application on the grounds that the applicant did not meet the criteria for a protection visa under the Migration Act 1958 (Cth).

The primary legal issue before Emmett J was whether the Minister's decision to refuse the protection visa was affected by an error of law. Specifically, the court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give sufficient weight to certain evidence presented by the applicant, and whether this failure constituted a jurisdictional error. The applicant also contended that the delegate had failed to adequately assess the risk of harm to him if he were returned to Vietnam.

Emmett J found that the delegate had failed to properly consider and assess crucial evidence relating to the applicant's political activities and the potential consequences of his return to Vietnam. His Honour held that the delegate's assessment was superficial and did not engage with the substance of the applicant's claims, thereby failing to discharge the duty to assess the real chance of persecution. This failure amounted to a jurisdictional error.

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

Orders