AJW18 v Minister for Immigration - [2018] FCCA 267

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJW18 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 267

Catchwords:
MIGRATION – Ex tempore ruling on application to restrain imminent deportation.

Legislation:

Migration Act 1958 (Cth), ss.197C, 198

Australian Broadcasting Corporation v O’Neill [2006] HCA 46
MZZFW v Minister for Immigration [2015] FCCA 1902

Applicant:

AJW18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION

File Number:

MLG 214 of 2018

Judgment of:

Judge Burchardt

Hearing date:

28 January 2018

Date of Last Submission:

28 January 2018

Delivered at:

Melbourne

Delivered on:

28 January 2018

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Ms A. Briffa

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 214 of 2018

AJW18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION
Second Respondent

REASONS FOR JUDGMENT

The applicant seeks by way of injunction to restrain the Minister from giving effect to an ITOA decision dated 26 February 2015. The process that led to that decision was conducted in the absence of the applicant, who absconded in 2014. All parties agree, expressly or implicitly, that the first issue the Court will look to is whether there is a prima facie case in the sense described in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; a test often referred to, as the parties did here, as whether there is a serious question to be tried.
The respondent takes something akin to a preliminary point in that it is submitted that there is no serious question to be tried. The question of the applicant’s removal, pursuant to s.198 of the Migration Act 1958 (Cth) (“the Act”), is not one to which the ITOA decision had any relevance. In that regard, counsel relied upon the decision of Judge Lucev in the matter of MZZFW v Minister for Immigration [2015] FCCA 1902 (“MZZFW”). It should be noted immediately, as his Honour recorded at paragraph [54], that that was not an ITOA case.
On the particular facts of the case, his Honour found that there was no jurisdiction to grant an injunction because PRC decision was not a migration decision. Counsel for the Minister in this case concedes readily of the distinction between that and an ITOA case. However, having decided that he had no jurisdiction to grant the injunction, his Honour went on to consider independently whether there was power to prevent the applicant’s removal because of s.197C of the Act.
At [55], his Honour, as I said, had already found he had no jurisdiction to grant an injunction because it was a PRC decision. At [58], his Honour set out the following, and I am omitting references to authorities:
This Court has held…

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 267
Decision Date: 28 January 2018

CaseChat Overview and Summary

The applicant, AJW18, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the primary decision-maker had made an error in assessing the applicant's claims of persecution, specifically in relation to the credibility of the applicant's account and the assessment of the risk of harm should the applicant be returned to their country of origin. The Court was required to determine if the decision was affected by an error of law, including whether the decision-maker had failed to properly consider relevant evidence or had applied the correct legal standards.

Judge Burchardt reasoned that the primary decision-maker had failed to adequately assess the applicant's credibility, particularly in relation to certain inconsistencies in their account. The Court found that the decision-maker had not properly engaged with the applicant's explanations for these inconsistencies, thereby failing to give them due consideration. This failure led to an erroneous assessment of the risk of persecution. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to conduct a thorough and fair assessment of all relevant evidence and to provide adequate reasons for their findings.

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

Orders