ALV16 v Minister for Immigration - [2018] FCCA 626

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 626

Catchwords:
MIGRATION – Judicial Review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Migration and Border Protection not to grant Protection visa – whether the Tribunal assessed the risk of future harm to the applicant if he returned to Afghanistan solely on the basis of statistical evidence – whether the statistical evidence on which the Tribunal relied for assessing the risk of future harm was probative of the risk the applicant was likely to face on his return to Afghanistan – whether the Tribunal relied on a finding without any evidentiary foundation – whether the Tribunal failed to consider or engage with an aspect of the reasonable practicality of the applicant relocating within Afghanistan – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error.

Legislation:

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

Cases cited:

Applicant:

ALV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 102 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

17 March 2017

Date of Last Submission:

17 March 2017

Delivered at:

Sydney

Delivered on:

16 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr S Tully

Solicitors for the Applicant:

Ryburn Solicitors

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 102 of 2016

ALV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of Afghanistan, a Hazara, and a Shia Muslim, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

The applicant’s claims for protection are set out in a statutory declaration the applicant submitted with his application for a Protection visa in which he claimed as follows:[1]
a)The applicant was born in a village in the district of Khas Uruzgan in Afghanistan.
b)In 1997 the applicant fled to Pakistan because the Taliban made it impossible for him…

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 626
Decision Date: 16 March 2018

CaseChat Overview and Summary

The applicant, ALV16, 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 ALV16 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 of the Minister had properly considered all relevant evidence and applied the correct legal principles in assessing ALV16's claims for protection. Specifically, the Court considered whether the delegate had failed to adequately assess the risk of harm to ALV16 in their country of origin, and whether the delegate's findings were supported by the evidence.

Judge Manousaridis found that the delegate had made a jurisdictional error by failing to adequately consider the evidence relating to the risk of harm ALV16 would face upon return to their country of origin. The Court held that the delegate's assessment was superficial and did not engage with the specific details of ALV16's claims, thereby failing to discharge the duty to be satisfied that the applicant did not hold a well-founded fear of persecution. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide reasons that are not merely a repetition of the applicant's submissions but demonstrate an independent assessment.

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

Orders