ACR17 v Minister for Immigration - [2018] FCCA 1183

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACR17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1183

Catchwords:
MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 499

Cases cited:

Applicant:

ACR17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 14 of 2017

Judgment of:

Judge Kendall

Hearing date:

1 May 2018

Date of Last Submission:

1 May 2018

Delivered at:

Perth

Delivered on:

17 May 2018

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Ms La

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The originating application filed 9 January 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 14 of 2017

ACR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 9 January 2017, the applicant sought the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 14 December 2016.
In essence, the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (the “Minister”) on 15 March 2016 not to grant the applicant a Protection (Class A) Visa (“protection visa”).
The applicant’s protection visa application was lodged on 3 November 2014.
The applicant sought…

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 1183
Decision Date: 17 May 2018

CaseChat Overview and Summary

The applicant, ACR17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had properly considered all the evidence before them, particularly in relation to the applicant's claims of persecution. The court also considered whether the reviewable decision was affected by an error of law.

Judge Kendall found that the delegate had failed to adequately assess the applicant's claims regarding the risk of harm they would face if returned to their country of origin. Specifically, the delegate's reasons did not demonstrate a proper consideration of the evidence relating to the applicant's specific circumstances and the potential for them to be targeted. This failure constituted a jurisdictional error, as the delegate did not exercise their power according to law.

Consequently, the court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders