ADJ16 v Minister for Immigration - [2016] FCCA 3326

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADJ16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3326

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s claims about his involvement in Christian activities in Australia – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider the applicant’s fear of harm upon return to China – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2), 476

Cases cited:

Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2012] FCAFC 71

Applicant:

ADJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 100 of 2016

Judgment of:

Judge Smith

Hearing date:

28 November 2016

Date of Last Submission:

28 November 2016

Delivered at:

Sydney

Delivered on:

28 November 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr R White, Mills Oakley Lawyers

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 100 of 2016

ADJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

The applicant is a citizen of the People’s Republic of China who arrived in Australia on 9 April 1997. On 10 June 1997 he applied for a protection visa. However, on 16 June 1997 a delegate of the Minister for Immigration and Multicultural Affairs made a decision not to grant that visa. The applicant applied to what was then the Refugee Review Tribunal[1] for review of the delegate’s decision, and the Tribunal affirmed the decision of the delegate after the applicant did not attend the hearing which had been scheduled.
[1] On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Some considerable time passed as the applicant remained unlawfully in Australia before he applied for a second time for a protection visa on 3 December 2013. On 5 June 2014 a delegate of the Minister decided not to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing that took place over the course of two days on 9 and 11 December 2015, at which he and a number of other witnesses gave evidence in support of his claims. On 21 December 2015 the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of the second Tribunal decision.
In order to succeed, he must establish that that Tribunal’s decision was affected by jurisdictional error. That is, an error that affected the Tribunal’s exercise of power and in particular affected the way in which it carried out its review of the delegate’s decision.
In order to understand the issues that…

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 3326
Decision Date: 28 November 2016

CaseChat Overview and Summary

The applicant, ADJ16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant ADJ16 a protection visa. The matter was heard in the Federal 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. Specifically, the Court was required to determine if the delegate of the Minister, in assessing ADJ16's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Smith reasoned that the delegate's assessment of ADJ16's claims had been flawed. The delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution, particularly in light of the country information available at the time. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Kruger v The Commonwealth*, emphasizing the obligation of decision-makers to consider all relevant evidence and to apply the correct legal test for establishing a well-founded fear of persecution. The delegate's failure to properly engage with the evidence and the relevant legal framework constituted a jurisdictional error.

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

Orders