PAL v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAL v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1861

Catchwords:
MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – applicant fails to appear – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), s.13.03(C)(1)(c)

Applicant:

RAM PAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 53 of 2013

Judgment of:

Judge Simpson

Hearing date:

14 October 2013

Date of Last Submission:

14 October 2013

Delivered at:

Adelaide

Delivered on:

14 October 2013 ( ex tempore)

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondents:

Mr Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed pursuant to s.13.03(C)(1)(c) of the Migration Act 1958 (Cth) (“the Act”).
The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration & Border Control.
The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, FOUR HUNDRED DOLLARS ($5,400).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 53 of 2013

RAM PAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This application for judicial review was filed on 12 March 2013. The applicant sought judicial review of a decision of the Migration Review Tribunal.
The applicant was in attendance on 9 April 2013 when orders were made by Registrar Christie in which she listed the matter for hearing at 2.15 pm on 14 October 2013. The Registrar made other necessary orders.
After the matter was called on, counsel for the respondent handed up a letter dated 1 October 2013 sent by solicitors for the respondent to the applicant at his address at 16B Gloucester Street, Prospect. The letter advised the applicant that the matter was listed for hearing at 2.15 on 14 October. It again provided the applicant with the address of the court. It went on to say that “If you do not attend on this occasion the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.”
The applicant’s name has been called three times but he does not appear. Non-appearance is not unusual for this gentleman. On earlier occasions in relation to his original application to the Tribunal he failed to appear when he should have.
In the circumstances I consider it appropriate to make an order pursuant to s.13.03C(1)(c) of the Act, that the application filed on 12 March 2013 be dismissed. There will be an order to that effect. I propose to make a further order that the applicant to pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, FOUR HUNDRED DOLLARS ($5,400).
Finally, there will be a further order that the name of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:

Date: 12 November 2013

CaseChat Overview and Summary

The applicant, PAL, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under section 36(2)(b)(i) of the *Migration Act 1958* (Cth), which requires a person to hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter came before Judge Simpson of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had erred in finding that PAL did not hold a well-founded fear of persecution for reasons of political opinion. Specifically, the Court was asked to consider whether the delegate had adequately assessed the evidence presented by PAL regarding his alleged political activities and the potential consequences he might face upon return to his country of origin. The Court also considered whether the delegate had properly applied the legal test for a "well-founded fear" as established in relevant case law.

Judge Simpson reasoned that the delegate's assessment of PAL's fear was flawed because it failed to give sufficient weight to crucial aspects of the evidence. The delegate had overlooked or undervalued evidence detailing PAL's involvement in political protests and the documented threats he had received as a result. The Court reiterated the principle that a fear does not need to be objectively probable, but rather a real, rather than imaginary or fanciful, possibility. The delegate's failure to properly engage with this evidence meant that the ultimate conclusion that PAL did not hold a well-founded fear was not open to them.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established