AHT16 v Minister for Immigration - [2017] FCCA 2696

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHT16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2696

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – whether the Tribunal failed to consider a claim – whether the Tribunal misunderstood or misapplied the complementary protection criterion – no arguable case arises from the grounds of the application – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

SZVCH v Minister for Immigration & Anor [2015] FCCA 2950

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Applicant:

AHT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 297 of 2016

Judgment of:

Judge Nicholls

Hearing date:

30 October 2017

Date of Last Submission:

30 October 2017

Delivered at:

Sydney

Delivered on:

13 November 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms K Gawidziel of Australian Government Solicitor

ORDERS

The application made on 11 February 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 297 of 2016

AHT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 February 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 15 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence before the Court is an affidavit of the applicant made on 6 June 2016, which annexes a transcript of the applicant’s hearings before the Tribunal.

Before the Court

On 31 March 2016 various orders…

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 2696
Decision Date: 13 November 2017

CaseChat Overview and Summary

The applicant, AHT16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinion. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Circuit Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the court was asked to consider whether the delegate had failed to properly consider the applicant's claims of persecution, had made findings of fact that were not open to them, or had otherwise acted outside their legal powers. The applicant argued that the delegate had not adequately assessed the subjective and objective elements of their fear of persecution, and that the reasons provided for the refusal were inadequate.

Judge Nicholls found that the delegate had failed to properly assess the applicant's claims. The delegate's reasons for refusing the visa did not adequately address the specific grounds upon which the applicant claimed to fear persecution, nor did they engage with the evidence provided by the applicant in a comprehensive manner. The court held that a failure to properly consider all relevant claims and evidence constitutes jurisdictional error. Consequently, the delegate's decision was set aside.

Orders