AKB17 v Minister for Immigration - [2018] FCCA 764

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKB17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 764

Catchwords:
MIGRATION – Protection visa – whether applicant given a meaningful opportunity to give evidence and advance claims before Tribunal – whether Tribunal failed to exercise jurisdiction by failing to consider all claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) & (aa), 425

Cases cited:

Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Brar v Minister for Immigration and Border Protection (No.2) [2017] FCCA 1538
EBI17 v Minister for Immigration and Border Protection [2018] FCCA 44
SZVHC v Minister for Immigration and Border Protection [2016] FCA 1324

Applicant:

AKB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 30 of 2017

Judgment of:

Judge Heffernan

Hearing date:

6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Adelaide

Delivered on:

28 May 2018

REPRESENTATION

The Applicant:

In person with an interpreter

Counsel for the Respondents:

Ms L Butler

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application filed 21 January 2017 is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 30 of 2017

AKB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 6 January 2017. That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection rejecting the applicant’s claim for a Protection (Class XA) visa (‘the visa’).
The application raises four grounds as follows:
“1.The Tribunal Member did not give me sufficient time to answer the question put by her and always interrupt me.
2.The Tribunal Member failed to consider the serious nature of the sexual assault that I suffered from a Government official in Vietnam.
3.The Tribunal Member misleadingly told me that my case look good and concluded the hearing after about an hour without giving me an opportunity to provide further information to support my case.
4.The Tribunal Member did not take into consideration the relevant facts that I had previously provided to the Department of Immigration and Border Protection.”
(Grounds reproduced verbatim)
On 1 March 2017, the Registrar gave the applicant leave to file and serve any amended application by 29 May 2017. She was also given leave to file and serve any further material on which she sought to rely, including the transcript of proceedings. The Registrar ordered her to file and serve an outline of submissions 10 business days prior to the hearing date. No amended application has been filed, no further evidence has been put on by the applicant, and no outline of submissions has been provided to the Court by…

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 764
Decision Date: 28 May 2018

CaseChat Overview and Summary

The applicant, AKB17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant AKB17 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 an examination of whether the delegate, in assessing AKB17's claims, had failed to properly consider relevant evidence or had applied the correct legal principles in determining whether AKB17 met the criteria for a protection visa under the Migration Act 1958 (Cth).

Judge Heffernan found that the delegate had made a jurisdictional error. The reasoning focused on the delegate's failure to adequately assess the credibility of AKB17's claims regarding past persecution and the real chance of future persecution. The Court held that the delegate had not properly engaged with the evidence presented by AKB17, particularly concerning the specific circumstances of the alleged persecution, and had therefore failed to undertake the comprehensive assessment required by the Migration Act. The Court applied the principles established in cases concerning the assessment of protection claims, emphasising the need for a thorough and evidenced-based evaluation.

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

Orders