AFZ16 v Minister for Immigration - [2017] FCCA 2012

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2012

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether Tribunal applied an active intellectual process to claims made by Second Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa)

Cases cited:

Chan Yee Kin & Minister for Immigration and Ethnic Affairs [1989] HCA 62
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14
NZWY & The Minister for Immigration and Multicultural Affairs [2006] FCA 506
SZSZW & The Minister for Immigration and Border Protection [2015] FCA 562

SYAZT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857
The Minister for Immigration and Ethnic Affairs & Wu Shan Liang [1996] HCA 6

First Applicant:

AFZ16

Second Applicant:

AGA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 213 of 2016

Judgment of:

Judge Hartnett

Hearing date:

15 May 2017

Delivered at:

Melbourne

Delivered on:

23 August 2017

REPRESENTATION

Counsel for the Second Applicant:

Mr Bayly

Solicitors for the Second Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Petrie

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 213 of 2016

AFZ16

First Applicant

AGA16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 21 January 2016. By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicants protection (class XA) visas (‘the visas’).
The Second Applicant relies upon an amended application filed on 24 April 2017. Contained within that application is a single ground of review which is as follows:-
“1. The Tribunal failed to perform its statutory function according to law and that it:
(a) failed to properly consider the applicants’ claim that, in the event that they were to return to Egypt, they feared that the second applicant would suffer persecution or significant harm in the form of sexual harassment and/or sexual assault.
Particulars
The Tribunal failed to consider the following matters that form part of the applicants’ claim:
Sexual harassment, sexual assault and violence against women are pervasive in Egypt and are tolerated by the Egyptian authorities;
The second applicant experienced three separate incidents of sexual assault in Egypt before departing for Australia;
If the applicants were required to return to Egypt, it was likely that the second applicant would experience further instances of sexual harassment or sexual assault;
Because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the second applicant.”

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 2012
Decision Date: 23 August 2017

CaseChat Overview and Summary

The applicant, AFZ16, 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 delegate had properly considered all relevant information when assessing the applicant's claims for protection, particularly in light of the applicant's stated fear of persecution. This involved determining whether the delegate had adequately assessed the credibility of the applicant's claims and whether the delegate had applied the correct legal standards in assessing the risk of harm.

Judge Hartnett found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, specifically concerning the applicant's subjective fear and the objective circumstances in the applicant's country of origin. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all evidence. The delegate's failure to properly weigh all relevant factors meant that the decision was affected by jurisdictional error.

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

Orders