PAL v Minister for Immigration - [2017] FCCA 906

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAL v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 906

Catchwords:
MIGRATION – Application for judicial review – application incompetent – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.486D(1)

Cases cited:

Uddin v Minister for Immigration & Anor [2017] FCCA 500

Singh v Minister for Immigration & Anor [2017] FCCA 522

Applicant:

PRIT PAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2431 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Melbourne

Delivered on:

12 April 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1,443.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2431 of 2016

PRIT PAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

On 13 July 2015, the applicant applied for a student visa. On

23 October of that year, a delegate refused the application. This decision was the subject of a review application to the Administrative Appeals Tribunal (“the Tribunal”). On 9 May 2016, the Tribunal affirmed the decision of the delegate and refused the applicant’s application for review.
Following the Tribunal’s decision, on 19 May 2016, the applicant sought judicial review in the Federal Circuit Court of Australia. However, the applicant did not appear at court on the first return date of 26 October 2016, at which point the application was dismissed as a result of his non-appearance at the directions hearing.
There appears to be a significant question about whether or not the Registrars have delegated powers to dismiss proceedings, as occurred in this case on 26 October 2016. This issue can be seen in the differences in decisions made in Uddin v Minister for Immigration & Anor [2017] FCCA 500 and Singh v Minister for Immigration & Anor [2017] FCCA 522. I understand that a further decision in the case involving Applicant BJC16 is now pending on appeal to the Federal Court of Australia.
Whilst this is a significant issue, it is not one that I necessarily have to determine today. What I am asked to determine is whether or not the current (more recent) application is invalid and not whether or not the previous application remains pending. In these circumstances, particularly given that there are two conflicting judgments of this court already and an appeal pending, it seems to me that it would be inappropriate to add obiter dictum comment to this issue.
On 8 November 2016, the applicant lodged the present (more recent) judicial review application seeking an extension of time to bring judicial review proceedings with respect to the decision of the Tribunal. In this application, the applicant did not disclose that he had brought the previous proceedings in this court with respect to…

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: [2017] FCCA 906
Decision Date: 12 April 2017

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Riethmuller, considered an application for judicial review brought by PAL against the Minister for Immigration. The dispute concerned the lawfulness of a decision made by the Minister to refuse PAL's application for a Protection visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the Protection visa was affected by jurisdictional error. This involved determining whether the delegate of the Minister, in assessing PAL's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

The Court's reasoning focused on the proper interpretation and application of the *Migration Act 1958* (Cth) and relevant regulations. Judge Riethmuller examined the evidence before the delegate and the delegate's reasons for decision to ascertain if there was a failure to properly assess PAL's claims in accordance with the statutory framework. The Court applied principles of administrative law concerning the duty to afford procedural fairness and the requirement for decision-makers to undertake a proper consideration of the evidence and the law.

The Court found that the delegate had failed to adequately consider certain aspects of PAL's claims, constituting a jurisdictional error. Accordingly, the Court set aside the Minister's decision and remitted the application for a Protection visa to the Minister for reconsideration according to law.

Orders