AMA15 v Minister for Immigration - [2015] FCCA 1954

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMA15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1954

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Refugees and Migration Division) – Protection (Class XA) visa – complementary protection – whether the Tribunal failed to consider an integer of the applicant’s claim – where applicant withdrew part of his claim at the Tribunal hearing – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 476

SZGIZ v Minister for Immigration and Citizenship [2013] 212 FCR 235

Applicant:

AMA15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1035 of 2015

Judgment of:

Judge Street

Hearing date:

17 July 2015

Date of Last Submission:

17 July 2015

Delivered at:

Sydney

Delivered on:

17 July 2015

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents:

Ms N Maddocks
DLA Piper

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1035 of 2015

AMA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 24 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA) visa. On 14 May 2015 the Court made orders fixing the matter for hearing today, and providing an opportunity for the applicant to amend the application and file any further affidavit evidence or put on written submissions. The applicant has not done so. The application raises the following grounds:
1 Regarding to the money I.owes in China, at the beginning, I borrowed RMB 700,000 from loan sharks and owes a further RMB 1,200,000 to factory owners. RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing. I pointed out that I could recall the specific events in order to provide evidences by questioning and answering specific. RRT never questioned me specific or just questioned general questions, but RRT ·required me to provide details answers. This ignored my own situation and was against the law. According to the law, RRT should make full sense of my own situation and not require excessive evidences.
2 The Tribunal failed to make a fair 'complementary protection' grounds test. I own a huge amount of money and I am a FalunGong practitioner. I would face persecution upon return to China. There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if l removed from Australia to China.
The applicant had a long migration history, having arrived in Australia on 12 December 2004, which is set out…

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.

Keep reading for free

Create a free CaseChat account to read AMA15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 1954
Decision Date: 17 July 2015

CaseChat Overview and Summary

AMA15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was from Afghanistan, claimed to fear persecution on the basis of imputed political opinion and membership of a particular social group. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not substantiated and that there was no real chance of persecution. The applicant appealed this decision to the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection. This involved examining whether the delegate had properly applied the relevant legal tests for assessing claims of persecution, including the assessment of subjective fear and objective risk.

Judge Street found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding the specific circumstances in Afghanistan and the potential for persecution. The delegate's assessment had been too general and had not sufficiently engaged with the detailed information provided by the applicant about the risks faced by individuals with his alleged imputed political opinions and social group affiliations. The Court reiterated the principle that a delegate must genuinely consider all relevant evidence and not simply dismiss claims without proper analysis.

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

Orders