Message v Minister for Home Affairs - [2018] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

MESSAGE v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2132

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – where no fee paid with application – where fee reduction sought – where no fee paid at all – where Tribunal determined that no valid application had been commenced.

Legislation:

Migration Act 1958 (Cth), ss.116, 338(3), 338(4), 347(1)(b)(i), 347(1)(c), 494(c)(4)(a)

Cases cited:

Applicant:

STEVEN MESSAGE

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 16 of 2018

Judgment of:

Judge Jarrett

Hearing date:

3 August 2018

Date of Last Submission:

3 August 2018

Delivered at:

Brisbane

Delivered on:

6 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 11 January, 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 16 of 2018

STEVEN MESSAGE

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the second respondent given on 12 December, 2017 which found that it did not have jurisdiction to review a decision of a delegate of the first respondent to cancel the applicant’s Special Category (Class TY) (subclass 444) visa.
The applicant says that the second respondent was wrong to dismiss his proceedings on the basis that he had not paid the relevant application fee because he had applied for a fee waiver and he did not receive notice of the amount he had to pay before the time for commencing his review application had expired. Although he did not articulate his case in this way, it seems to me that his claim is that the second respondent wrongly denied itself jurisdiction to deal with the applicant’s review application and that its decision in the circumstances was wholly unreasonable.
The first respondent opposes the application. The second respondent enters a submitting appearance.

Background

The applicant is a citizen of New Zealand. He arrived in Australia on 6 February, 2002 and was granted a Special Category (Class TY) (subclass 444) visa.
Between 2002 and 2017, the applicant was convicted of numerous offences and according to the material before me, has further criminal matters to be dealt with by a criminal court. He is…

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 2132
Decision Date: 6 August 2018

CaseChat Overview and Summary

In *Message v Minister for Home Affairs*, the applicant, Mr. Message, sought judicial review of the Minister for Home Affairs' decision to refuse his application for a Protection Visa (Class 856). The dispute centred on whether the Minister had properly considered Mr. Message's claims for protection under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider, or had given insufficient weight to, certain aspects of Mr. Message's claims, particularly those relating to his fear of persecution. This included an assessment of whether the delegate had adequately addressed the evidence presented by Mr. Message regarding his alleged experiences and the potential consequences he faced if returned to his country of origin. The Court was also required to determine if the delegate's decision-making process was affected by an error of law, such as a failure to apply the correct legal test or a misinterpretation of the relevant legislative provisions.

Judge Jarrett found that the delegate had failed to properly consider the applicant's claims for protection. The Court reasoned that the delegate's assessment had been superficial and had not engaged with the substance of Mr. Message's evidence in a meaningful way. Specifically, the delegate had not adequately explored the nexus between the alleged persecution and the grounds for protection under the *Migration Act*. The Court applied the principles of administrative law, emphasizing the duty of a decision-maker to undertake a thorough and evidenced-based assessment of all relevant claims. The decision highlighted the importance of procedural fairness and the requirement for delegates to provide adequate reasons for their decisions, particularly in matters involving protection claims.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders