ADZ16 v Minister for Immigration - [2016] FCCA 3246

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADZ16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3246

Catchwords:
MIGRATION – Refugee Review Tribunal – extension of time application – merit in substantive grounds – extension of time granted – Tribunal considering what applicant should do upon his return to Iran – Tribunal failing to consider what applicant would do upon his return to Iran – jurisdictional error established.

Legislation:
Migration Act 1958, ss.91R(1), 477(1), 477(2)

Cases cited:

Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25
Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71
Minister for Immigration and Border Protection v WZAPN & Anor (2015) 254 CLR 610; (2015) 146 ALD 480; (2015) 320 ALR 467; (2015) 89 ALJR 639; [2015] HCA 22

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6

MZAIV v Minister for Immigration & Anor [2015] FCCA 2782

SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765

Applicant:

ADZ16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 137 of 2016

Judgment of:

Judge Riley

Hearing date:

19 October 2016

Date of last submission:

19 October 2016

Delivered at:

Melbourne

Delivered on:

15 December 2016

REPRESENTATION

Counsel for the applicant:

Alexander Solomon-Bridge

Solicitors for the applicant:

Victoria Immigration Lawyers

Counsel for the first respondent:

Liam Brown

Solicitors for the first respondent:

DLA Piper Australia

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

DLA Piper Australia

ORDERS

The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.
The decision of the Refugee Review Tribunal handed down on 25 March 2015 in matter number 1405951 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 137 of 2016

ADZ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

In this matter, the applicant applied for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
A registrar listed the matter for the hearing of the extension of time application and, if granted, the substantive application, on 19 October 2016. On that date, the Minister did not oppose…

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 3246
Decision Date: 15 December 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by ADZ16 against the Minister for Immigration, seeking to set aside a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed the Minister's decision to refuse ADZ16's application for a Protection visa. The core of the dispute revolved around the AAT's assessment of ADZ16's claims of persecution.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of ADZ16's claims. Specifically, the Court was asked to consider whether the AAT had failed to adequately consider certain evidence, whether it had applied the correct legal test for assessing the well-foundedness of ADZ16's fear of persecution, and whether it had properly considered the possibility of internal relocation.

Judge Riley found that the AAT had made a jurisdictional error by failing to adequately consider the evidence relating to ADZ16's alleged past experiences and the potential for future persecution. The Court held that the AAT had not properly engaged with the evidence presented, particularly concerning the specific nature and credibility of the alleged threats. Consequently, the AAT's decision was set aside.

The Court remitted the matter to the AAT for redetermination according to law.

Orders