AAA18 v Minister for Immigration - [2018] FCCA 3091

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAA18 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3091

Catchwords:
MIGRATION – Application for judicial review – protection application – Immigration Assessment Authority – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 425, 473DA, 473DB, 473DD, 473DE, pt.7AA

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Applicant:

AAA18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1 of 2018

Judgment of:

Judge Riethmuller

Hearing date:

10 September 2018

Date of Last Submission:

10 September 2018

Delivered at:

Melbourne

Delivered on:

31 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

WLW Migration Lawyers

Counsel for the First Respondent:

Mr Goodwin

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1 of 2018

AAA18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 27 November 2017 which affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth). The applicant is currently held in detention.
The applicant is a Pashtun Shia member of the Turi tribe from Pakistan. He arrived in Australia by boat on 30 May 2013. The applicant claimed to fear harm as a Muslim Shia. The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 23 January 2017. He required the assistance of a Pashto interpreter.
On 12 October 2017, the delegate refused to grant the applicant a visa. The refusal was referred to the IAA on 18 October 2017. The IAA affirmed the decision of the delegate on 27 November 2017.

The applicant’s claims

The IAA summarised the applicant’s claims at [6] of its decision:
·He is a single male in his mid-twenties, a Shia member of the Pashtun Turi tribe, who was born and always resided in Perkho Colony near Parachinar, the capital of Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. The applicant's birthplace is one kilometre north of the main Parachinar bazaar.
·The applicant completed school and then studied for a further two years at a private college where he claimed that he obtained a Bachelor of Science degree, although at the SHEV interview he said that he only studied botany and zoology. He worked as a labourer in the construction industry around Parachinar and tutored the neighbour's children in English. He speaks Pashto, Urdu and some English.
·Growing up, the applicant was always affected by sectarian conflict between the Taliban and the Shia population of Parachinar. When the applicant…

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 3091
Decision Date: 31 October 2018

CaseChat Overview and Summary

In AAA18 v Minister for Immigration, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the Tribunal had failed to adequately assess the risk of persecution faced by the applicant, and whether it had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *1951 Convention relating to the Status of Refugees* (as amended). The applicant also contended that the Tribunal had failed to provide adequate reasons for its decision.

Judge Riethmuller found that the Tribunal had indeed erred in law. The Court held that the Tribunal had not properly considered all aspects of the applicant's evidence regarding the risk of persecution, particularly in relation to certain specific claims made by the applicant. Furthermore, the Court determined that the reasons provided by the Tribunal were insufficient to allow the applicant to understand the basis of the decision, thereby constituting a failure to provide adequate reasons as required by administrative law principles. The Court concluded that the decision of the Tribunal was affected by jurisdictional error.

Consequently, the Court made orders quashing the decision of the Administrative Appeals Tribunal and remitting the application for a protection visa to the Tribunal to be heard and determined according to law.

Orders