Minhas v Minister for Immigration - [2018] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINHAS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2314

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Student visa – application in this Court for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant a Student visa due to not being satisfied that the applicant genuinely intended to stay in Australia temporarily – no appearance by applicant before scheduled Tribunal hearing – applicant applied to Administrative Appeals Tribunal for reinstatement on the basis of inadequate medical certificate – Administrative Appeals Tribunal nevertheless reinstated application for review – no appearance by applicant at rescheduled hearing before the Administrative Appeals Tribunal and it proceeded to dismiss review application – no appearance by applicant at scheduled final hearing of the application for judicial review filed in this Court – first application for reinstatement for non-appearance in this Court – no appearance by applicant at scheduled first reinstatement hearing before this Court – second application for reinstatement in this Court – no reasonably arguable jurisdictional error identified in proposed grounds and no adequate explanation given for non-appearance at the scheduled final hearing – second application for reinstatement dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.348, 360, 362B, 363

Migration Regulations 1994 (Cth)

Cases cited:

AYX17v Minister for Immigration and Border Protection [2018] FCAFC 103

BXD17 v Minister for Immigration and Border Protection [2018] FCA 765

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration v SZVFW [2018] HCA 30
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

MZAHI v Minister for Immigration and Border Protection [2016] FCA 129

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365

Sullivan v Department of Transport (1978) 20 ALR 323

SZMSA v Minister for Immigration [2010] FCA 345

SZMSF v Minister for Immigration [2010] FCA 585

Applicant:

USMAN AZMAT MINHAS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3217 of 2016

Judgment of:

Judge Dowdy

Hearing date:

29 September 2017

Delivered at:

Sydney

Delivered on:

24 August 2018

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Ms E. Warner-Knight

Solicitors for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application in a Case filed in this Court on the 31 August 2017 seeking leave to file a further Application in a Case for reinstatement of the substantive Application filed on 18 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3217 of 2016

USMAN AZMAT MINHAS

Applicant

And

MINISTER FOR…

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 2314
Decision Date: 24 August 2018

CaseChat Overview and Summary

In *Minhas v Minister for Immigration*, the applicant, Mr Minhas, 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 adequately considered the applicant's claims of persecution.

The primary legal issue before Dowdy J was whether the Minister's delegate had failed to properly consider the applicant's claims of past persecution and well-founded fear of future persecution, as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court had to determine if the delegate's assessment of the evidence was illogical or irrational, thereby constituting a failure to exercise jurisdiction.

Dowdy J reasoned that the delegate's decision-making process contained a critical error. The delegate had overlooked or failed to give sufficient weight to significant portions of the applicant's evidence regarding his experiences of persecution in his home country. This failure meant that the delegate did not engage with the entirety of the applicant's case, leading to an irrational conclusion that the applicant did not have a well-founded fear of persecution. The court applied the principle that a delegate must consider all relevant evidence and make findings based on a rational assessment of that evidence.

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

Orders