AHN16 v Minister for Immigration - [2018] FCCA 1645

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHN16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1645

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – protection (class XA) visa – internal relocation – test of ‘reasonable, in the sense of practicable’ – whether the tribunal considered the applicants’ claims for protection – whether the tribunal incorrectly applied Appellant S395 – application dismissed.

Cases cited:
AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
DFZ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2427
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564
SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40
SZTEO v Minister for Immigration and Border Protection (2016) 239 FCR 1

First Applicant:

AHN16

Second Applicant:

AHO16

Third Applicant:

AHP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 261 of 2016

Judgment of:

Judge Mercuri

Hearing date:

15 February 2018

Date of last submission:

15 February 2018

Delivered at:

Melbourne

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the applicants:

Mr A Aleksov

Solicitors for the applicants:

Carina Ford Immigration Lawyers

Counsel for the respondents:

Mr M Hosking

Solicitors for the respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 18 January 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application according to law.
The first respondent pay the applicants’ costs of the proceedings in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 261 of 2016

AHN16

First Applicant

AHO16

Second Applicant

AHP16

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal

(“the tribunal”) on 20 January 2016. In that decision, the tribunal affirmed a decision of a delegate of the first respondent, the

Minister for Immigration and Border Protection (“the Minister”) made on 3 July 2014 not to grant the applicants protection (class XA) visas (“the visas”).
The tribunal’s decision is found in the Court Book at pages 332 to 350.
By their amended application, the applicants sought:
a)a writ of certiorari issue to quash the decision of the tribunal;
b)a writ of mandamus be directed to the tribunal, requiring them to determine the applicants’ application according to law; and
c)the first respondent pay the applicants’ costs of and incidental to the proceeding.[1]
[1] See the applicants’ amended application filed 18 January 2018.
The applicants claim to have a well-founded fear of persecution in their…

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 1645
Decision Date: 29 June 2018

CaseChat Overview and Summary

The applicant, AHN16, sought judicial review of a decision made by the Minister for Immigration. 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 of the Minister had properly considered all the relevant information and applied the correct legal principles in assessing the applicant's claims for protection.

Judge Mercuri found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the risk of persecution in the applicant's country of origin. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all material before them. The failure to properly engage with the applicant's evidence constituted a jurisdictional error.

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