AJQ16 v Minister for Immigration - [2017] FCCA 661

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJQ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 661

Catchwords:
MIGRATION – Protection Visa – Judicial Review.

Legislation:

Migration Act 1958

Cases cited:
Australian Postal Corporation v D'Rozario [2014] FCAFC 89
Minister for Immigration and Citizenship and Le [2007] 164 FCR 151
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Border Protection vSZRTF [2013] FCCA 91
NAHI v The Minister for Immigration & Multicultural & Indigenous Affairs and Anor [2004] FCAFC 10
SZTDX v Minister for Immigration and Border Protection [2014] FCA 515

Applicant:

AJQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 160 of 2016

Judgment of:

Judge Howard

Hearing date:

15 February 2017

Date of Last Submission:

15 February 2017

Delivered at:

Brisbane

Delivered on:

15 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms Wheatley

Solicitors for the First Respondent:

Clayton Utz

ORDERS

That the application be dismissed.
That the applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 160 of 2016

AJQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 15 February 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

The applicant in this case was born on 24 December 1987 and arrived in Australia on 11 August 2012 as what is termed “an unauthorised maritime arrival”. The applicant applied for a protection class XA visa on 5 December 2012. The Minister’s delegate refused the application for a protection visa. That decision was dated 6 January 2014. The applicant filed an application for a review to the Refugee Review Tribunal on 9 January 2014 and, on 6 February 2014, detailed submissions by the applicant’s representative were made to the Tribunal.
In January of 2015, the Tribunal wrote to the applicant and invited the applicant to a hearing so that the applicant could give oral evidence and present other arguments. Leave was given for the applicant to attend via video conference link, apparently the applicant was somewhat closer to Rockhampton, and the leave was granted in February 2015 and then it seems there was a hearing set down for 25 February 2015, but it was adjourned.
A further hearing was to take place on 20 March 2015 and it did take place via video conference link between Sydney and Rockhampton. Subsequently, a representative of the applicant wanted to provide further submissions and leave was granted to do so. A further oral hearing occurred on 28 October 2015. An issue arose in relation to the applicant’s mental health and there was apparently some further medical information provided and taken into account by the Tribunal. This seems to have occurred on 27 and 30 November 2015. The Tribunal made a decision…

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 661
Decision Date: 15 February 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review filed in the Federal Circuit Court of Australia by the applicant, AJQ16, against the Administrative Appeals Tribunal. The applicant sought to challenge a decision made by the Tribunal, alleging several errors of law in its determination.

The applicant raised three grounds of error. Firstly, the Tribunal was alleged to have erred by considering irrelevant facts. Secondly, the Tribunal was accused of failing to consider relevant facts, specifically by not asking pertinent questions during an interview to obtain crucial information and by making unsubstantiated conclusions. Thirdly, the applicant contended that the Tribunal failed to consider relevant country information, particularly concerning his suspicion of involvement in a murder, which he argued supported his eligibility for a protection visa under the Complementary Protection Provision of the *Migration Act 1958*.

The Court considered grounds 1 and 3 together, as the particulars for ground 1 were linked to ground 3. The applicant had made various claims, including his religious affiliation, suspected involvement in a murder, and support for the LTTE. The Tribunal had considered the applicant's mental health and made adverse credibility findings, deeming some of his claims, including those about interrogation and mistreatment, to be fabrications and his evidence regarding the alleged murder inquiry implausible. The Court noted that it was not permitted to conduct a merits review of the Tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

On 19 February 2016, the applicant filed an application for judicial review of the Tribunal’s decision. By that stage, the name of the Tribunal had changed to the Administrative Appeals Tribunal. The application for judicial review was filed in the Federal Circuit Court of Australia. The applicant filed an amended application on 24 May 2016 setting out some grounds of application. The grounds of the application are numbered 1, 2 and 3 and will be included in their entirety here in these reasons for judgment. “1. The Tribunal erred in law by taking into consideration facts not relevant to the matter in making the decision.Particulars: Please refer to Ground 3 where this ground applies.2. The Tribunal erred in law by not taking into considerations relevant facts in making the decision.Particulars:a. The purpose of the interview is to obtain important further information from the Applicant which would either support his application or in the absence of a valid and plausible answer to any questions the Tribunal seek to put forward. In this instance the Tribunal failed to ask questions of the Applicant relevant questions in order to arrive at a fair and reasonable conclusion.b. The Tribunal has made several conclusions without obtaining substantial facts in the interview from the Applicant to ascertain the validity of the conclusions. These conclusions were made without substantiation with facts that support them.3. The Tribunal erred in not taking into consideration relevant Country information in making the decision.Particulars:a. The Applicant has provided valuable country information that supported his application in that his suspicion of involvement in a murder placed him in a category that supports the criteria for the grant of the protection visa under the Complementary Protection Provision of the Migration Act 1958.” Turning initially to ground number 1, ground number 1 is linked, it says, to ground number 3, that is to say the particulars for ground number 1 are said to be contained in ground number 3 so that it is appropriate for ground numbers 1 and 3 to be considered at the same time. The applicant had made various claims relating to his religion, namely, as a Roman Catholic Tamil from the north of Sri Lanka and of suspected involvement in a murder or the withholding of evidence relating to a murder, that he was seen to be a supporter of the LTTE, amongst other claims that are all referred to in the Tribunal’s decision, one of which is that he unlawfully departed from Sri Lanka. The Tribunal, as I said earlier, did give consideration to the question of the applicant’s mental health and the Tribunal did make some adverse findings as to the applicant’s credit to the effect that some of his claims were untrue, that his claim of interrogation and mistreatment by the authorities in Sri Lanka was said to be a fabrication and that other evidence that he gave in particular in relation to the alleged murder inquiry, were simply not plausible in the view of the Tribunal. This Court is not permitted to conduct a merits review of the Tribunal’s findings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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