FEDERAL CIRCUIT COURT OF AUSTRALIA
| AME16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2607 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – whether the Administrative Appeals Tribunal had regard to all claims and evidence before it – whether the Administrative Appeals Tribunal erred in confining its consideration of an application made under s.48A and s.48B of the Migration Act 1958 (Cth) to consideration of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal denied the applicant procedural fairness or natural justice – whether the Administrative Appeals Tribunal erred in misinterpreting, misunderstanding or misapplying the relevant law – whether the adverse credibility findings made by the Administrative Appeals Tribunal were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 48A, 48B, 65, 91R, 411, 424AA, 474, 476 Migration Regulations 1994 (Cth), reg.2.01 |
| Applicant: | AME16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 494 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 18 October 2017 |
| Date of Last Submission: | 18 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| Applicant appeared in person with an interpreter |
| Counsel for the Respondents: | Mr Jonathan Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 494 of 2016
| AME16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 15 January 2016 (“the Tribunal”) refusing to grant the applicant a Protection (Class XA) visa.
Prior to considering the proceeding before this Court,…
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Details
- Case
- [2017] FCCA 2607
- Decision Date
CaseChat Overview and Summary
The applicant, Ame16, sought judicial review of a decision by the Minister for Immigration, which affirmed a delegate's refusal to grant him a protection visa. The dispute centred on the applicant's claims of persecution and the Tribunal's assessment of his credibility and the risks he faced upon return to Egypt. The matter came before Emmett J of the Federal Court of Australia.
The core legal issues before the Court were whether the Tribunal had committed jurisdictional error in its adverse credibility findings, due to a lack of probative evidence or a logical connection between the findings and the material relied upon. Further issues included whether the Tribunal had misapplied the law or failed to ask the correct questions regarding the applicant's participation in a protest and his potential perception by Egyptian authorities. The Court was also asked to consider whether the Tribunal erred in its understanding of its power to assess claims under the Refugee Convention, denied natural justice and procedural fairness by failing to make findings on substantial arguments, failed to deal with the entirety of the applicant's claims, and failed to take into account relevant considerations, including country information, Facebook evidence, and medical reports.
Emmett J considered the applicant's grounds of review, which alleged jurisdictional error in various aspects of the Tribunal's decision-making process. The applicant contended that the Tribunal's adverse credibility findings were not supported by sufficient evidence or logical connection. He also argued that the Tribunal misapplied the law by failing to properly assess the implications of his detention following a protest and by incorrectly limiting its consideration to complementary protection provisions rather than also assessing claims under the Refugee Convention. Furthermore, the applicant asserted a denial of procedural fairness due to the Tribunal's failure to address significant arguments and a failure to genuinely consider all aspects of his claims, including the risk of harm as a failed asylum seeker. The Court was required to determine if these alleged errors amounted to jurisdictional error, thereby invalidating the Tribunal's decision.
The core legal issues before the Court were whether the Tribunal had committed jurisdictional error in its adverse credibility findings, due to a lack of probative evidence or a logical connection between the findings and the material relied upon. Further issues included whether the Tribunal had misapplied the law or failed to ask the correct questions regarding the applicant's participation in a protest and his potential perception by Egyptian authorities. The Court was also asked to consider whether the Tribunal erred in its understanding of its power to assess claims under the Refugee Convention, denied natural justice and procedural fairness by failing to make findings on substantial arguments, failed to deal with the entirety of the applicant's claims, and failed to take into account relevant considerations, including country information, Facebook evidence, and medical reports.
Emmett J considered the applicant's grounds of review, which alleged jurisdictional error in various aspects of the Tribunal's decision-making process. The applicant contended that the Tribunal's adverse credibility findings were not supported by sufficient evidence or logical connection. He also argued that the Tribunal misapplied the law by failing to properly assess the implications of his detention following a protest and by incorrectly limiting its consideration to complementary protection provisions rather than also assessing claims under the Refugee Convention. Furthermore, the applicant asserted a denial of procedural fairness due to the Tribunal's failure to address significant arguments and a failure to genuinely consider all aspects of his claims, including the risk of harm as a failed asylum seeker. The Court was required to determine if these alleged errors amounted to jurisdictional error, thereby invalidating the Tribunal's decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The applicant then told the Court that he wished to rely on all of the grounds of his initiating application. Those grounds are as follows:“Ground 1: No Evidence1. The adverse credibility findings by the second respondent were affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the second respondent’s assessment of the applicant’s credit and the material upon which it relied to make that assessment with regard to the applicant’s credibility.ParticularsAdverse Credibility Findinga) There was not a sufficient logical or evidentiary basis for the Tribunal to find at [93], that the ‘applicant is not a witness of truth and that he embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa’ and that the ‘applicant is not a reliable or credible witness’.Ground 2: Misapplication of Law of Failure to Ask the Correct Question2. The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.ParticularsThe Protest in December 2006a) At [98], the Tribunal accepted that a ‘few days after the protest in December 2006, approximately 240 students, including the applicant, were detained by the Egyptian authorities for questioning’ and accepted the ‘applicant was insulted, beaten, detained at the Police Station overnight and released without charge.’ However, the Tribunal erred at [101], by finding that the applicant is not ‘perceived by the Egyptian authorities to be a member or supporter of the MB or someone who wants to overthrow the government because he signed a petition against a teacher in 2005 and/or because of his participation in a student protest at El Azhar University in December 2006. It follows that the Tribunal does not accept that the applicant will be arrested, detained, harmed or treated badly for these reasons if he returns to Egypt in the reasonably foreseeable future.’Consideration of the applicant’s claims under the refugee criterionb) At [32], the Tribunal erred by misapplying the authority in in SZGIZ, and AMA15 that the Tribunal ‘does not have the power to consider the applicant's claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.’ To the contrary, the Tribunal has the power to consider new claims and evidence under the refugee criterion, not previously raised.Ground 3: Denial of Natural Justice and Procedural Fairness3. The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.Particularsa) For the reasons particularised at ground one and two.Ground 4: Failure to deal with the applicant’s claims or integer of those claims4. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.Particularsa) For the reasons particularised at ground one and two.b) Alternatively, the Tribunal failed to genuinely, properly or realistically take into account that the applicant faces a real risk of harm at the hands of the Egyptian authorities for being a failed asylum seeker on the basis of his failed claims against the Egyptian authorities.Ground 5: Relevant Considerations5. The second respondent failed to take into account relevant considerations when making the decision to affirm the decision by the delegate to refuse the applicant a protection visa.Particularsa) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the applicant’s claims at [98] or integers of those claims articulated at ground 3(b).b) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the country information, at [73].c) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the Facebook evidence, discussed at [67]-[70].d) The second respondent failed to take into account relevantly, or give proper, genuine or realistic consideration to the medical reports discussed at [76].e) Alternatively, the second respondent failed to take into account whether the applicant faces a real risk of harm for being a failed asylum seeker on the basis of his failed claims against the Egyptian authorities.”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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