ACA16 v Minister for Immigration - [2017] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACA16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2074

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a protection visa – applicant granted protection as a stateless Faili Kurd – applicant subsequently travelling to Iran on a valid Iranian passport issued in his own name – whether the Tribunal erred by overlooking relevant considerations or relevant material or by failing to make enquiries considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 46A, 97, 99, 100, 101, 107, 108, 109, 425, 427, 476

Financial Transactions Reports Act 1988 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

King v Burgess; Ex Parte Henry (1936) 55 CLR 608

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v SZIAI (2009) 83 ALJR 1123
Minister for Immigration v SZGUR (2011) 241 CLR 594
Minister for Immigration v SZJSS (2010) 243 CLR 164
NBKE v Minister for Immigration [2007] FCA 126
Nottebohm (Liechtenstein v Guatamala) [1955] ICJ Rep 4

Sandoval v Minister for Immigration [2001] FCA 1237

Sykes v Cleary (No.2) (1992) 176 CLR 77
VSAB v Minister of Immigration [2006] FCA 239
WZAQH v Minister for Immigration & Anor [2013] FCCA 182

Applicant:

ACA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 48 of 2016

Judgment of:

Judge Driver

Hearing date:

30 August 2017

Delivered at:

Sydney

Delivered on:

3 October 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M Treisman of Chandlers International Lawyers

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as amended on 30 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 48 of 2016

ACA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 December 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s subclass 866 protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant claimed to be born in the city of Ilam in the Islamic Republic of Iran (Iran).[1] He is a Faili Kurd and practises Shia Islam.[2] He entered Australia as an “unauthorised maritime arrival”, as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act), on 1 April 2010.[3]
[1] Court Book (CB) 3
[2] CB 6
[3] CB 83
On 5 May 2010, the applicant participated in an interview with an officer in the Minister’s Department (Department).[4] At that interview, the applicant claimed to be stateless[5] and to have left Iran because of a “lack of identity” and because he claimed to have “no rights whatsoever” as a Kurd.[6]…

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 2074
Decision Date: 3 October 2017

CaseChat Overview and Summary

ACA16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and alleged involvement in political activities. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of persecution, had made findings of fact that were not open to them, or had otherwise failed to exercise their powers according to law. This involved an examination of whether the delegate had adequately assessed the applicant's credibility and whether the reasons provided for the refusal were sufficiently particularised and logically sound.

Judge Driver found that the delegate had made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's credibility was flawed because it relied on an overly rigid and unsubstantiated approach to assessing inconsistencies in the applicant's account. The delegate had failed to adequately explain why certain aspects of the applicant's evidence were disbelieved, and had not properly considered the potential impact of the applicant's ethnicity and alleged political activities on their fear of persecution. The Court applied the principles of administrative law, including the requirement for decision-makers to provide adequate reasons for their decisions and to engage in a proper consideration of all relevant evidence.

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

Orders