Serroukh v Minister for Immigration - [2017] FCCA 3241

FEDERAL CIRCUIT COURT OF AUSTRALIA

SERROUKH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3241

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from a decision of a Delegate of the Minister for Immigration because it was lodged outside the applicable 21 day period for doing so – the Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – Administrative Appeals Tribunal did not commit jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 338, 347, 375A, 494B, 494C, 494D
Migration Regulations 1994 (Cth)

Cases cited:

Calimoso v Minister for Immigration [2016] FCA 1335
SZJQC v Minister for Immigration [2008] HCASL 66

Applicant:

FATIMA SERROUKH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1542 of 2016

Judgment of:

Judge Dowdy

Hearing date:

13 December 2016

Date of Last Submission:

17 January 2017

Delivered at:

Sydney

Delivered on:

21 December 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms A Wong

Solicitors for the Respondents:

Mills Oakley Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 20 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1542 of 2016

FATIMA SERROUKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of Morocco aged 40 years, having been born on 23 June 1977.
By Application filed in this Court on 20 June 2016 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 6 June 2016, that it had no jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 December 2015 refusing to grant to her a Partner (Migrant) (Class BC) (Subclass 100) visa (Partner visa) because it had been lodged with the Tribunal after the time prescribed under the Migration Act 1958 (Cth) (Act).

Background

On 9 June 2013 the Applicant applied from Cairo for a Partner (Provisional) (Class UF) (Subclass 309) visa (Subclass 309 visa) and the Partner visa on the grounds of her being in a spousal relationship with her husband who was an Australian citizen and the sponsor (the sponsor) of her Partner visa application. The Applicant made a combined application for these visas, which are usually assessed about two years apart. The Partner visa was a permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.
The Partner visa application was lodged by the Applicant’s appointed migration agent, Mr Ron…

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 3241
Decision Date: 21 December 2017

CaseChat Overview and Summary

The applicant, Mr Serroukh, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Protection Visa (subclass 866). The dispute concerned whether the Minister's delegate had properly considered the applicant's claims of persecution. The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision-making process was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to adequately assess the applicant's claims regarding his fear of persecution based on his membership of a particular social group, and whether the delegate had failed to consider all relevant information provided by the applicant.

Dowdy J found that the delegate's assessment of the applicant's claims was inadequate and amounted to jurisdictional error. The delegate had failed to engage with the specific evidence presented by the applicant concerning his fear of persecution, particularly in relation to the proposed grounds of membership of a particular social group. The Court reiterated the principle that a delegate must genuinely consider all claims made by an applicant and provide reasons that address those claims, rather than making a perfunctory or superficial assessment. The delegate's reasons did not demonstrate a proper consideration of the evidence, leading to the conclusion that the decision was vitiated by jurisdictional error.

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

Orders