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Alz16 v Minister for Immigration

Alz16 v Minister for Immigration

Case [2017] FCCA 2631 31 October 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ALZ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2631

Catchwords:
MIGRATION – Application for judicial review – protection visa – relocation – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB, 473DC, 473DD, 473GB(3)

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
BVM16 v Minister for Immigration & Anor [2016] FCCA 3183
BBS16 v Minister for Immigration & Anor [2017] FCCA 4
Minister for Immigration and Border Protection & Anor v SZSSJ (2016) 333 ALR 653

Applicant:

ALZ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 428 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

12 April 2017

Date of Last Submission:

2 May 2017

Delivered at:

Melbourne

Delivered on:

31 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Maloney

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

DLA Piper

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 428 of 2016

ALZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks orders quashing a decision of the Immigration Assessment Authority (“the IAA”) made on 23 December 2015, affirming a decision of a delegate for the first respondent to refuse to grant the applicant a temporary protection (subclass 785) visa.
The applicant is a citizen of Iraq who came to Australia by boat from Indonesia, arriving on Christmas Island on 16 September 2012. In May 2015, the applicant was invited to apply for a protection visa and did so in June that year. In October the delegate of the Minister refused to grant the applicant’s protection visa, and as a result the matter was automatically referred to the IAA pursuant to section 473CA of the Migration Act 1958. The IAA requested further information from the applicant, which the applicant provided. On 23 December 2015 the IAA affirmed the decision of the delegate to refuse the protection visa application.
The applicant claimed protection on the basis that as a stateless Kuwaiti Bedoon, this exposed him to discrimination and caused him to leave school early, and that his family were forced to convert from being Sunni Muslims to Shia Muslims when they moved from Kuwait.
The applicant says that his house (though now vacant) continued to be a target for Shia militias, that his family has been interrogated and his father imprisoned for periods by Shia militia, that his two brothers who trained with the Iraqi security forces and served in the Iraqi police were forced to resign because of their Bedoon heritage and that therefore he is…

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.

Continue reading Alz16 v Minister for Immigration

Details

AGLC: ALZ16 v Minister for Immigration [2017] FCCA 2631
Case: [2017] FCCA 2631
Decision Date: 31 October 2017

CaseChat Overview and Summary

Alz16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse an application for a protection visa. The applicant's claim for protection was based on a fear of persecution in their home country.

The primary legal issue before the court was whether the respondent's decision to refuse the protection visa was affected by an error of law. Specifically, the court was required to consider whether the respondent had failed to properly consider all relevant matters, including the applicant's claims regarding relocation within their country of origin.

Judge Riethmuller found that there were no matters of principle raised by the application that warranted judicial review. The court was satisfied that the respondent had adequately considered the applicant's submissions and the evidence before them. The decision to refuse the visa was not found to be affected by any error of law.

Consequently, the application for judicial review was dismissed.

Orders