Aeh17 v Minister for Immigration - [2017] FCCA 2812

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2812

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424AA

Cases cited:

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

Minister for Immigration v SCAR (2003) 128 FCR 553

Perera v Minister for Immigration (1999) 92 FCR 6
Singh v Minister for Immigration (2001) 115 FCR 1

First Applicant:

AEH17

Second Applicant:

AEI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 106 of 2017

Judgment of:

Judge Driver

Hearing date:

16 November 2017

Delivered at:

Sydney

Delivered on:

16 November 2017

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms G Doyle of Sparke Helmore

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 106 of 2017

AEH17

First Applicant

AEI17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants, who are a mother and son. The protection claims were made by the first applicant, the applicant mother, who I will refer to as “the applicant”. Background facts are otherwise set out in the Minister’s outline of submissions filed on 9 November 2017.
The applicants are citizens of the People’s Republic of China[1]. On 10 October 2014, the applicants lodged an application for protection visas[2]. On 15 June 2015, the delegate refused the grant of protection visas to the applicants[3].
[1] Court Book (CB) 14, 29
[2] CB 12
[3] CB 50
On 7 July 2015, the applicants lodged with the Tribunal an application for review of the delegate’s decision[4]. On 27 September 2016, the Tribunal invited the applicants to attend a hearing on 23 November 2016[5]. The applicant attended the hearing with the assistance of a Mandarin interpreter[6]. On 21 December 2016, the Tribunal affirmed the decision under review.
[4] CB 69
[5] CB 74
[6] CB 76
On 12 January 2017, the applicants filed an application to show cause in this Court.

Applicant’s claims for protection

In a statement attached to her application for a protection visa[7], the applicant made the following claims:
a)the applicant was born in Baoding city in Hebei province in China. In May 1998, she bought a shop for 200,000 RMB. The shop became successful and the primary source of…

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 2812
Decision Date: 16 November 2017

CaseChat Overview and Summary

The applicant, Aeh17, 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 came before Driver J of the Federal Court of Australia.

The central 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 consider whether the delegate of the Minister, in assessing the applicant's claims for protection, had failed to properly consider relevant information and had made findings that were not open to them based on the evidence before them. This involved an examination of the delegate's assessment of the applicant's claims of persecution and the application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Driver J found that the delegate had made a jurisdictional error. The Court reasoned that the delegate had failed to adequately consider crucial evidence relating to the applicant's fear of persecution, particularly concerning the alleged actions of a particular group. The delegate's findings on this aspect were found to be based on an incomplete and, therefore, flawed understanding of the evidence. The Court applied the principle that a decision-maker must genuinely consider all relevant evidence and that a failure to do so can vitiate the decision.

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

Orders