AMJ15 v Minister for Immigration - [2017] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMJ15 & ANOR v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 1035

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment – procedural fairness – protection visa claims allegedly released in data breach – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection SZTZI [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653

CDM16 v Minister for Immigration & Anor [2016] FCCA 2758

AKD15 v Minister for Immigration & Ors [2016] FCCA 2740

First Applicant:

AMJ15

Second Applicant:

AMK15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 18 of 2015

Judgment of:

Judge Young

Hearing date:

8 May 2017

Date of Last Submission:

8 May 2017

Delivered at:

Darwin

Delivered on:

8 May 2017

REPRESENTATION

First Applicant in person via video link.

Second Applicant in person via video link.

Counsel for the Respondents:

Ms Davidson

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed 16 April 2015 be dismissed.
The Applicants pay the Respondents’ costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 18 of 2015

AMJ15

First Applicant

AMK15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of an International Treaty Obligation Assessment, usually called an ITOA, undertaken by a Departmental officer on 7 April 2015 in respect of the two applicants who are Chinese citizens. The migration history of the applicants is relevant. They both arrived in Australia in October 2006 on false South Korean passports. On 9 January 2014 a protection visa application was refused for the first applicant as the primary applicant and the second applicant as a member of his family.
It appears that the applicants were then or thereafter taken into detention. In February 2014 there was a release of information about thousands of people on the Department’s website, usually called the ‘data breach’. The information released, essentially, was biographical information about applicants including names, addresses, age, detention, place of detention, whether other family members were in detention and the like. It is not my understanding that in any case information on which protection visa applications were based was released.
On 12 March 2014 the applicants were advised that information had been disclosed. There was a further letter on 21 March 2014 in relation to the same matter.…

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 AMJ15 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: [2017] FCCA 1035
Decision Date: 8 May 2017

CaseChat Overview and Summary

The applicant, AMJ15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of AMJ15's claims of persecution. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. This involved examining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing AMJ15's claims for protection, particularly in relation to the risk of harm upon return to their country of origin.

Judge Young found that the delegate had failed to adequately consider crucial aspects of AMJ15's evidence regarding the specific nature and severity of the persecution feared. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper and comprehensive assessment of all relevant evidence. The failure to do so constituted a jurisdictional error.

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

Orders