Uddin v Minister for Immigration & Anor - [2017] FCCA 500

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 500

Catchwords:
MIGRATION – No appearance by the applicant – first respondent moved for dismissal of the application under r.13.03C(1)(c) – consideration of the powers of Registrars – r.20.00A confers on the Registrars the powers of the Court prescribed under the Rules – appropriate for Registrars to exercise the power under r.13.03C(1)(c) if Registrar saw fit – application is dismissed.

Legislation:

Federal Circuit Court Act 1999, ss.16, 101, 102, 103, 104, 105

Federal Circuit Court Rules 2001, r.13.03C(1)(c), Div 13.1A, 20.00A

Migration Act 1958 (Cth), s.476

Public Service Act 1999 (Cth)

Applicant:

SALAH UDDIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3019 of 2016

Judgment of:

Judge Street

Hearing date:

17 March 2017

Date of Last Submission:

17 March 2017

Delivered at:

Sydney

Delivered on:

17 March 2017

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents:

Ms C Richards-Neville

Clayton Utz

ORDERS

The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant to pay the First Respondent’s costs fixed in the amount of $1,443.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3019 of 2016

SALAH UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 September 2016, affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.
The proceedings were commenced on 24 October 2016. At the time of the filing of the application, there was issued a notice of filing and hearing to the applicant, identifying a time and place of hearing, being 16 March 2017 at 2.15 pm, and the place being the Courtroom 17.1 Level 17, Law Courts Building, Queen’s Square, Sydney. That listing was before a Registrar of this Court.
The matter was called before the Registrar and the applicant did not appear. The Registrar has referred the matter to this Court for consideration of whether or not the application should be dealt with under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Federal Circuit Court Rules”). The matter was also called by this Court and the applicant has not appeared.
The first respondent has moved for the dismissal of the application under r.13.03C(1)(c) of the Federal Circuit Court Rules and has handed up to the Court a letter to the first respondent marked as Exhibit A, confirming the hearing date, time and place today, at which the applicant has failed to appear. The letter was sent to the applicant’s correct address as was identified in the application.
The first respondent is not aware of any reason why the applicant has not appeared.…

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 500
Decision Date: 17 March 2017

CaseChat Overview and Summary

Uddin, the applicant, sought judicial review of a decision by the Minister for Immigration and Border Protection, the first respondent, and the Commonwealth of Australia, the second respondent, to refuse his application for a Protection visa. The applicant alleged that the decision was unlawful and sought orders quashing the decision and remitting the matter for redetermination.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations or taken into account irrelevant considerations when assessing the applicant's claims for protection, thereby rendering the decision invalid. Specifically, the applicant contended that the delegate had failed to properly assess the risk of persecution based on his alleged membership of a particular social group and his imputed political opinion.

The Court found that the delegate's assessment of the applicant's claims was flawed. It was held that the delegate had failed to adequately consider the evidence presented by the applicant regarding the nature and extent of persecution faced by members of the alleged social group in his country of origin. Furthermore, the Court determined that the delegate had placed undue weight on certain aspects of the evidence while downplaying others, leading to an erroneous conclusion about the applicant's fear of persecution. The legal principle applied was that a decision-maker must undertake a comprehensive and balanced assessment of all relevant evidence when determining an application for a Protection visa.

The Court ordered that the decision of the Minister be quashed and that the application for a Protection visa be remitted to the Minister for redetermination according to law.

Orders