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ACN16 v Minister for Immigration

ACN16 v Minister for Immigration

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Case Copied 24 October 2018 18 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ACN16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2969

Catchwords:
MIGRATION – Protection visa – applicant arrived in Australia on a student visa – 18 month delay in making a protection claim – unparticularised grounds of review – no propositions of fact or law set out grounding the protection claim – no indication of existence of jurisdictional error – some claims exaggerated – inconsistent and vague evidence – sufficiency of tribunal’s reasons – tribunal gave active, intellectual consideration to all of applicant’s claims – country information considered – credibility concerns – application dismissed.

Legislation:

Migration Act 1958, s 424AA

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

BCF15 v Minister for Immigration and Border Protection (2016) 314 FLR 291

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

BKL26 v Minister for Immigration and Border Protection [2016] FCA 802

BYM16 v Minister for Immigration and Border Protection [2017] FCA 326

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579

COZ16 v Minister for Immigration and Border Protection [2018] FCA 46

Craig v State of South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Misfud v Campbell [1991] 21 NSWLR 725

Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79

Pettitt v Dunkley [1971] 1 NSWLR 376

Public Service Board (NSW) v Osmond (1986) 159 CLR 656

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZKLO v Minister for Immigration and Citizenship [2008] FCA 735

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

SZSQL v Minister for Immigration and Border Protection [2015] FCA 294

Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Wainohu v New South Wales (2011) 243 CLR 181

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Other materials:

The Honourable Justice Mark Weinberg, “Adequate Sufficient and Extensive Reasons” (paper, Judicial College of Victoria, 4 March 2014)

Applicant:

ACN16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 62 of 2016

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

7 August 2018

Date of Last…

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 2969
Decision Date: 24 October 2018

CaseChat Overview and Summary

ACN16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse a protection visa. The applicant, who had arrived in Australia on a student visa, made a protection claim approximately 18 months after her arrival. The applicant's grounds of review were described as unparticularised, lacking specific propositions of fact or law to ground the protection claim and failing to indicate the existence of jurisdictional error.

The court was required to determine whether the Administrative Appeals Tribunal had erred in law in its assessment of the applicant's claims for a protection visa. Specifically, the court considered the sufficiency of the Tribunal's reasons, the impact of the applicant's inconsistent and vague evidence, and the Tribunal's consideration of credibility concerns and country information.

His Honour Judge J D Wilson QC found that the Tribunal had given active, intellectual consideration to all of the applicant's claims. The Tribunal had properly considered the available country information and had made adverse credibility findings based on the applicant's inconsistent and vague evidence, some of which was considered exaggerated. The court concluded that no jurisdictional error had been demonstrated.

The application for judicial review was dismissed.

Orders