AIK15 v Minister for Immigration - [2017] FCCA 1044

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIK15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 1044

Catchwords:
MIGRATION – Judicial review – International Treaty Obligation Assessment –
procedural fairness – alleged failure to ask correct question because of focus on contradictory evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Privacy Act 1988 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection SZTZI [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653

CDM16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2758

AKD15 v Minister for Immigrationand Border Protection & Ors [2016] FCCA 2740
ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279
SZUBX v Minister for Immigrationand Border Protection [2015] FCCA 2822

Applicant:

AIK15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 8 of 2015

Judgment of:

Judge Young

Hearing date:

9 May 2017

Date of Last Submission:

9 May 2017

Delivered at:

Darwin

Delivered on:

9 May 2017

REPRESENTATION

Applicant in person via video link

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 24 March 2015 be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 8 of 2015

AIK15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision made by an assessor as part of an International Treaty Obligation Assessment or ITOA for shorthand. The decision was made on 17 March 2015. This matter was adjourned by consent on 12 November 2015 pending the outcome of the case ultimately decided by the High Court in Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653. The matter has come for hearing today after that case was resolved in the High Court.
The grounds of the application were originally a template application of a kind that has been used repeatedly in this Court with the difference that, in this case, it appears the template is missing a page, certainly on the version that has been filed in court. Instead of the usual 19 grounds there are only 17. That template application was one that has been dealt with in other decisions. It was the template that was used…

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.

Keep reading for free

Create a free CaseChat account to read AIK15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1044
Decision Date: 9 May 2017

CaseChat Overview and Summary

AIK15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the real chance of persecution. Specifically, the Court was required to consider whether the Tribunal had correctly applied the principles established in relevant case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the assessment of the risk of harm.

Judge Young found that the Tribunal had made an error of law in its interpretation and application of the "particular social group" criterion. The Court reasoned that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the characteristics that defined their social group and how those characteristics would expose them to a real chance of persecution. The Court applied the principles from *Applicant S v Minister for Immigration and Ethnic Affairs* and *K v Minister for Immigration and Ethnic Affairs*, emphasizing that a particular social group must be defined by a common characteristic that is immutable or fundamental to the identity of its members, and that this characteristic must be recognised as such by society. The Tribunal's failure to properly engage with these established legal principles constituted an error of law.

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

Orders