AIY15 v Minister for Immigration - [2015] FCCA 1571

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIY15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1571

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – whether law of general application – whether the tribunal engaged in a qualitative assessment – no jurisdictional error.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka) s.45
Migration Act 1958, ss.36(2(a), 36(2)(aa), 91R, 476, 477, 499

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
MZAPO v Minister For Immigration & Anor [2015] FCCA 96
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39
SZTFR v Minister for Immigration and Border Protection [2015] FCA 545
Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

AIY15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 917 of 2015

Judgment of:

Judge Street

Hearing date:

5 June 2015

Date of Last Submission:

5 June 2015

Delivered at:

Sydney

Delivered on:

5 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr J. Mack

Solicitors for the Applicant:

Westside Legal

Solicitors for the Respondents:

Ms K. Hooper

DLA Piper

ORDERS

The further amended application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 917 of 2015

AIY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ in respect of a decision of the Tribunal made on 9 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA) visa. The grounds of the further amended application are as follows:
1. The Tribunal applied the wrong test pursuant to s 91R (2) of the Migration Act 1958 by proceeding to a qualitative assessment of the nature and degree of a harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently serious and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].
Particulars
At paragraph [75] and [76] of the decision, the Tribunal accepted that the applicant would be charged with offences under Sri Lanka's Emigration and Immigration Act, would be arrested and detained in relation to the offences and would be remanded in custody for up to several days in poor prison conditions; the Tribunal then engaged in a qualitative assessment of the circumstances of the applicants detention whilst in custody rather than assessing whether the process of being questioned, arrested and detained in custody would amount to a deprivation of the applicants liberty (s91R (2)(a)).
2. The Tribunal failed to engage in the required analysis or provide reasons reflecting the required analysis for determining whether Sri Lanka's Immigrant and Emigrants Act…

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: [2015] FCCA 1571
Decision Date: 5 June 2015

CaseChat Overview and Summary

AIY15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Sri Lankan origin, claimed to fear persecution in Sri Lanka due to their alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister had refused the protection visa application on the grounds that the applicant was a direct threat to Australia's security and therefore fell within the scope of section 48B of the *Migration Act 1958* (Cth) and Regulation 7247 of the *Migration Regulations 1994* (Cth). The matter came before Judge Street of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa on security grounds was affected by jurisdictional error. Specifically, the Court was required to determine whether the Minister had properly considered the evidence before them, including the applicant's claims of persecution, and whether the assessment of the applicant as a security threat was reasonable and based on relevant considerations. The applicant argued that the Minister had failed to adequately assess their claims of past persecution and that the security assessment was flawed.

Judge Street found that the Minister's decision-making process, as evidenced by the material before the Court, did not demonstrate jurisdictional error. The Court was satisfied that the Minister had considered the relevant evidence, including the applicant's claims and the security assessments. The reasoning applied was that the Minister was entitled to give weight to security concerns, and the assessment that the applicant posed a direct threat to Australia's security was a conclusion open to the Minister on the material before them. The Court affirmed the principle that a decision-maker is not required to accept all claims made by an applicant, particularly where those claims are outweighed by other considerations, such as national security.

The application for judicial review was dismissed.

Orders