Syed v Minister for Immigration - [2018] FCCA 2304

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2304

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to first respondent if adjournment granted – application for adjournment dismissed.

Applicant:

MUSTAFA SYED

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 13 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

3 August 2018

Date of Last Submission:

3 August 2018

Delivered at:

Sydney

Delivered on:

3 August 2018

REPRESENTATION

Applicant in person

Solicitors for the Respondents:

Ms K Hooper of Minter Ellison Lawyers

ORDERS

The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 13 of 2017

MUSTAFA SYED

Applicant

And

MINISTER FOR IMMIGATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Today there was set down before me the hearing of an application for judicial review filed by the applicant on 4 January 2017 in relation to a decision made by the second respondent, the Administrative Appeals Tribunal, on 3 January 2017.
The matter came before a Registrar on a first Court date on 20 April 2017. On that date the Registrar made certain directions for the further conduct of the matter, those directions including permitting the applicant to file a further amended application as well as filing evidence and written submissions. The Registrar also made an order that the matter be set down for hearing before me at 10.15 am on 3 August 2018.
Before I came on the bench this morning, the Registry communicated to my associate an email - and I will mark that email as exhibit A on the application for an adjournment – from the applicant in which he stated the following:
Myself Syed Mustafa I was in India for three months as my mother was very sick. I went to visit her and I arrived in Australia on 31 July 2018 – on 31/07/2018. Since then even I’m not feeling well. My mother she is again hospitalised today. With due respect I’m afraid I couldn’t attend tomorrow – that is, 3 August hearing. Please please extend my hearing. Thanks.
Before I came on the bench in the expectation that the applicant would not attend today’s hearing, as he indicated in his email he would not, I asked my associate to provide a copy of that email to Ms Hooper who is the lawyer for the Minister appearing before me today. When the matter was brought on, the applicant appeared in person. He has applied for the matter to be adjourned. He said he was not in a position to proceed with today’s hearing. As best as I can tell, the reason he gave was that he suffers from depression or from some other mental ailment which he says is due to the…

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 2304
Decision Date: 3 August 2018

CaseChat Overview and Summary

Syed (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution on the basis of his imputed political opinion and membership of a particular social group. The delegate of the Minister had found that the applicant's claims were not credible and therefore did not engage Australia's non-refoulement obligations.

The primary legal issue before the Federal Circuit Court was whether the delegate's adverse credibility assessment was affected by jurisdictional error. Specifically, the court was required to determine if the delegate had failed to consider relevant evidence or had taken irrelevant considerations into account when assessing the applicant's claims. The applicant also argued that the delegate had failed to provide adequate reasons for the adverse credibility findings.

Judge Manousaridis found that the delegate had failed to adequately explain the reasons for rejecting the applicant's claims of persecution. The delegate's decision relied on a general statement that the applicant's evidence was not credible, without engaging with the specific details of the applicant's account or explaining why certain aspects were disbelieved. This failure to provide sufficient reasons constituted a jurisdictional error. The court therefore set aside the delegate's decision and remitted the application for reconsideration according to law.

Orders