SZVWC v Minister for Immigration - [2019] FCCA 1995

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWC v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1995

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – claim that the Administrative Appeals Tribunal committed jurisdictional error by failing to constructively exercise its jurisdiction, consider all of the applicant’s claims and integers of those claims and engage in an active intellectual process – no such jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303

Applicant:

SZVWC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3511 of 2014

Judgment of:

Judge Dowdy

Hearing dates:

7 July 2016 & 27 July 2018

Delivered at:

Sydney

Delivered on:

25 July 2019

REPRESENTATION

The Applicant appeared
in person at the hearing on 7 July 2016 and did not appear at the hearing on 27 July 2018.

Counsel for the First Respondent:

Mr J. Hutton appeared at the hearing on 7 July 2016 and Ms H. Dejean appeared at the hearing on 27 July 2018.

Solicitors for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

Direct that pursuant Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth), the Second Respondent’s name be amended from ‘Refugee Review Tribunal’ to ‘Administrative Appeals Tribunal’.
The affidavit of the Applicant affirmed on 27 July 2016 is admitted and marked “Exhibit C”, with paragraphs 1 and 2 admitted and read only as submissions.
The Application filed in this Court on 18 December 2014 and the Amended Application filed in this Court on 16 March 2016 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3511 of 2014

SZVWC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant is a male citizen of India aged 44 years, having been born on 27 April 1975.
By Application filed in this Court on 18 December 2014 and Amended Application filed in this Court on 16 March 2016, he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal, formerly Refugee Review Tribunal), dated 24 November 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 March 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant applied offshore for a Business Visitor (Class FA) (Subclass 600) visa (Business visa) which was…

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: [2019] FCCA 1995
Decision Date: 25 July 2019

CaseChat Overview and Summary

The applicant, SZVWC, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of a protection visa by a delegate of the Minister for Immigration. The application was heard by Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the AAT had committed jurisdictional error by failing to constructively exercise its jurisdiction. Specifically, the applicant contended that the AAT had not considered all of the claims made by the applicant, nor the individual integers of those claims, and had not engaged in an active intellectual process in its determination.

Dowdy J found that no jurisdictional error had been established. The Court reasoned that the AAT had adequately considered the applicant's claims and the various aspects of those claims. The judgment indicated that the AAT had engaged in the necessary intellectual process to reach its decision, and therefore had not failed to constructively exercise its jurisdiction.

Consequently, the application for judicial review was dismissed.

Orders