Lui v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 852

Catchwords:
MIGRATION – Lack of particulars in grounds for review – inaction by lawyers for the first respondent has resulted in costs being unnecessarily incurred – orders made for the filing and service of a particularised amended application for review – application adjourned to the Registrar pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth).

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss.102(2)(i), 102(2)(f).

Federal Circuit Court Rules 2001 (Cth) rr.13.03A(1)(a), 13.03B(1)(c), 21.02(2).

Cases cited:

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for

Immigration & Anor [2019] FCCA 2951.

Applicant:

HUI LIU

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 382 of 2019

Judgment of:

Judge Egan

Hearing date:

3 April 2020

Date of Last Submission:

3 April 2020

Delivered at:

Brisbane

Delivered on:

3 April 2020

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Ms C. Allen of Sparke helmore

ORDERS

The Applicant is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review, by 4:00pm on 17 April 2020.
The Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely, relevant to the amended grounds of review, by 4:00pm on 17 April 2020.
The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely, relevant to the amended grounds of review, by 4:00pm on 1 May 2020.
This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 1 hereof relating to the ordered filing by the Applicant of an amended application containing detailed particulars of the grounds of review to be relied upon at the final hearing of this matter.
The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.
In the event that the Applicant has failed to comply with Order 1 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(‘the Rules’), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Rules.
The costs of and incidental to the hearing today be reserved.

NOTATION

A.The Applicant appeared by telephone today with the assistance of an interpreter in the Mandarin language who interpreted to the Applicant each of the Orders made by the Court today.
B.The Applicant was put on notice, during the course of today’s hearing in open Court, that in the event that the Applicant failed to comply with Order 1 hereof relating to the filing of an amended application, the application before the Court for review of the decision of the Administrative Appeals Tribunal handed down on 25 March 2019 was liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, a copy of which rule is to be provided to the Applicant by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 382 of 2019

HUI LIU

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

An originating application was filed in this matter on 17 April 2019. The grounds for review in such application were deficient in that they lacked particularity. The lawyers for the first respondent failed to take any steps to regularise either the question of lack of particulars, or make application for other appropriate orders, notwithstanding that it has been almost a year since the filing of the application for review. In that regard, the Court refers the parties to the decision of this Court in DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951.
The applicant is a citizen in China, who is a self-represented litigant. So much would have been known by the first respondent for a considerable period of time, and by the lawyers for the first respondent for at least a year. Notwithstanding the making of submissions that the application for review was without merit, it is apparent that no steps were taken to elicit from the applicant some particulars other than the vague general particulars contained in the application for review.
A draft set of orders was read out to the applicant today by the interpreter. They were also read by Ms Allen. The applicant was put on notice that if he did not file an application for review with detailed particulars of the ground or grounds of review sought to be relied upon by him by 4:00pm on 17 April 2020, then he was liable to have the whole of his application dismissed.
In those circumstances, orders are made by the Court in terms of the draft orders emailed to the parties. The Court has had regard to the submissions made by Ms Allen in relation to orders 5 and 7 of the orders of the Court. Had earlier prompt action been taken by the lawyers for the first respondent, very few costs would have been incurred in this matter.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 16 April 2020

In *Lui v Minister for Immigration*, the applicant, Mr Lui, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection Visa (Class XA). The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a Protection Visa, specifically concerning the assessment of his claims for protection.

The primary legal issue before the Federal Circuit Court was whether the delegate of the Minister had erred in law in their assessment of Mr Lui's claims for protection. This involved determining whether the delegate had properly considered all relevant information, applied the correct legal principles in assessing the risk of harm, and whether the delegate's findings of fact were reasonably open to them on the evidence before them.

Judge Egan found that the delegate had made an error of law by failing to adequately consider and assess certain aspects of Mr Lui's claims, particularly in relation to the credibility of his account and the potential for harm he might face upon return to his country of origin. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a proper, rational, and comprehensive assessment of the evidence and the relevant legal criteria. The delegate's failure to engage with significant parts of the applicant's evidence meant that the decision was not open to them on the evidence.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established