SZTTY v Minister for Immigration - [2015] FCCA 3180

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3180

Catchwords:
MIGRATION – Application for an extension of time – substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether explanation for delay satisfactory – whether merit in the substantive application – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.46, 476, 477

Applicant:

SZTTY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 90 of 2014

Judgment of:

Judge Nicholls

Hearing date:

4 August 2015

Date of Last Submission:

4 August 2015

Delivered at:

Sydney

Delivered on:

2 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $3326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 90 of 2014

SZTTY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 14 January 2014 and amended on 30 July 2014 seeking an extension of time within which to make a competent substantive application pursuant to s.476 of the Act seeking…

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: [2015] FCCA 3180
Decision Date: 2 December 2015

CaseChat Overview and Summary

The applicant, SZTTY, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the evidence presented by the applicant regarding their alleged fear of persecution, and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Judge Nicholls found that the delegate had failed to adequately consider the applicant's evidence in relation to their claimed fear of persecution. The Court reasoned that the delegate's adverse credibility findings were not adequately supported by the material, and that the delegate had not properly engaged with the applicant's account of events. The Court applied the principles of administrative law, requiring that decisions affecting individuals' rights and interests be made reasonably, with proper consideration of all relevant evidence and without jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders