AAD15 v Minister for Immigration - [2017] FCCA 1344

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAD15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1344

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Tribunal overlooked relevant material, breached s.425 of the Migration Act 1958 (Cth), made an unreasonable decision or overlooked a claim considered – whether the Tribunal decision is affected by a non-disclosure certificate considered.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 438

Cases cited:

AVO15 v Minister for Immigration [2017] FCA 566

BEG15 v Minister for Immigration & Anor [2016] FCCA 2778

CKG15 v Minister for Immigration & Anor [2017] FCCA 938

Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547

Minister for Immigration v SZRKT [2013] FCA 317

Minister for Immigration v SZSRS [2014] FCAFC 16

MZAFZv Minister for Immigration (2016) 243 FCR 1

Re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60

Re Minister for Immigration: Ex parte Miah [2001] HCA 22

Singh v Minister for Immigration (2016) 313 FLR 1

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZMUF v Minister for Immigration [2009] FCA 182

W360/01A v Minister for Immigration (2002) 124 FCR 449

WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630

Applicant:

AAD15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 547 of 2016

Judgment of:

Judge Driver

Hearing date:

20 June 2017

Delivered at:

Sydney

Delivered on:

29 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr R Selliah of Rasan T Selliah & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as further amended on 20 June 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 547 of 2016

AAD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 February 2016. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the submissions of the parties.

Background

The applicant is a national of Sri Lanka who first entered Australia as an irregular maritime arrival in August 2012.
On 12 December 2012, the applicant applied for a protection visa.[1] On 7 September 2013, a delegate of the Minister (delegate) refused to grant the visa.[2] The applicant sought review of that decision, which was affirmed by the former Refugee Review Tribunal (RRT) on 19 January 2015.
[1] Court Book “CB” 10
[2] CB 89
The applicant sought judicial review of the RRT’s decision. By consent, the matter 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: [2017] FCCA 1344
Decision Date: 29 August 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by AAD15 against the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought to challenge a decision made by the Minister to refuse to grant a protection visa. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims for protection, had failed to properly consider or give sufficient weight to certain aspects of the applicant's evidence and submissions, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth).

Judge Driver found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the risk of future persecution. The Court reasoned that a failure to properly engage with material evidence, particularly in the context of protection claims where the stakes are high, can constitute a jurisdictional error. The principles applied centred on the obligation of decision-makers to undertake a comprehensive and fair assessment of all relevant evidence and submissions presented by an applicant.

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

Orders