AJK16 v Minister for Immigration - [2018] FCCA 1094

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJK16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1094

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – whether Tribunal failed to consider evidence provided by the Applicant that was cogent and material to the Tribunal’s basis for rejecting the Applicant’s claim to fear persecution and significant harm if returned to Iran on the basis that he is an undocumented stateless Faili Kurd – held that the country information provided by the Applicant was not cogent and material to the Tribunal’s basis for rejecting the Applicant’s claim – whether the Tribunal failed to consider an integer of claim made by Applicant – held Tribunal did not fail to consider an integer of claim made by the Applicant – amended application for judicial review dismissed – costs ordered.

Legislation:

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art 1A

Migration Act 1958 (Cth), ss.36(2)(aa), 414

Cases cited:

ACE15 v Minister for Immigration and Border Protection[2017] FCA 1054
ATU16 v Minister for Immigration and Border Protection [2018] FCCA 686
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant:

AJK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 299 of 2016

Judgment of:

Judge Jones

Hearing date:

23 November 2017

Date of Last Submission:

23 November 2017

Delivered at:

Melbourne

Delivered on:

8 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Maxwell

Solicitors for the Applicant:

AUM Lawyers

Counsel for the Respondents:

Mr Yuile

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The Applicant’s amended application for judicial review filed on

31 October 2017 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 299 of 2016

AJK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 3 February 2016, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 19 May 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Tribunal's decision is at Court Book (“CB”) 262-273.
The material before the Court is the Applicant’s…

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 1094
Decision Date: 8 May 2018

CaseChat Overview and Summary

The applicant, AJK16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant AJK16 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 examining whether the delegate of the Minister, in assessing AJK16's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Jones found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the real chance of future persecution. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Kaur v Minister for Immigration and Ethnic Affairs*, emphasizing the obligation of decision-makers to undertake a thorough and objective assessment of all evidence presented. The delegate's assessment was found to be superficial and lacking in the detailed analysis required by the *Migration Act 1958* (Cth) and relevant international conventions.

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

Orders