Aaw16 v Minister for Immigration - [2016] FCCA 1643

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAW16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1643

Catchwords:
MIGRATION – Protection visa – fear of harm if returned to Egypt because known there as a homosexual – finality of litigation – applicant’s intention to run a different factual case before Tribunal – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48B, 477

Cases cited:

AMA15 v MIBP [2015] FCA 1424

Caboolture Park Shopping Centre (in liq) Pty Ltd v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
Commonwealth v Verwayen (1990) 170 CLR 394
Crown Melbourne Limited v Cosmopolitan Hotel (Vic)Pty Ltd [2016] HCA 26
Horton v Jones (No. 2) (1939) 39 S.R.(NSW) 305
Johnson v Gore Wood & Co [2002] 2 AC 1
M38/2002 v Minister for Immigration (2003) 131 FCR 146
Metwally v University of Wollongong (1985) 60 ALR 68
Minister for Immigration v Singh [2016] FCA 575
Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631
MZXHY v Minister for Immigration [2007] FCA 622
MZXLD v Minister for Immigration [2007] FCA 1912
Ozberk v Minister for Immigration (1998) 79 FCR 249
Plaintiffs157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Carroll (2002) 213 CLR 635
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1

SZGIZ v MIAC (2013) 212 FCR 235

SZJBD v Minister for Immigration (2008) 102 ALD 622
SZNOE v Minister for Immigration [2012] FCA 96
SZTES v Minister for Immigration [2015] FCAFC 158
The Ampthill Peerage [1977] AC 547

Applicant:

AAW16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 9 of 2016

Judgment of:

Judge Dowdy

Hearing date:

23 June 2016

Delivered at:

Sydney

Delivered on:

23 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr J Williams.

Counsel for the Respondents:

Ms R Francois.

Solicitors for the Respondents:

DLA Piper.

ORDERS OF THE COURT

Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to make his Application to this Court be extended up to and including 5 January 2016.
Order that the Further Amended Application filed in Court dated 23 June 2016 and the Application filed 5 January 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 9 of 2016

AAW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Egypt, aged 35 years, having been born on 19 April 1981.
He filed in this Court on 5 January 2016 an application seeking orders to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 7 July 2015 affirming a decision of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 17 June 2014 refusing to grant…

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: [2016] FCCA 1643
Decision Date: 23 August 2016

CaseChat Overview and Summary

The applicant, Aaw16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the applicant's claims of persecution in their country of origin, which were assessed by the Minister. The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to properly consider and assess the applicant's claims for protection, specifically in relation to the risk of harm they alleged they would face upon return to their country of origin. This involved an examination of whether the delegate's findings were supported by the evidence before them and whether the delegate had applied the correct legal principles in assessing the claims.

Dowdy J found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the specific nature of the harm alleged and the applicant's individual circumstances. The Court reiterated the principle that a delegate must engage with and assess all relevant claims made by an applicant, and that a failure to do so can render the decision legally unreasonable. The Court concluded that the delegate's assessment was flawed because it did not properly grapple with the evidence presented, leading to an erroneous conclusion regarding the risk of harm.

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

Orders