AMQ15 v Minister for Immigration - [2017] FCCA 686

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMQ15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 686

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment following “data breach” – citizen of China – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

AKD15 v The Minister for Immigration [2016] FCCA 2740
The Minister for Immigration v SZSSJ, The Minister for Immigration v SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653

Applicant:

AMQ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent:

GREG BREWER, DEPARTMENT OF
IMMIGRATION & BORDER PROTECTION

File Number:

DNG 19 of 2015

Judgment of:

Judge Young

Hearing date:

14 March 2017

Date of Last Submission:

14 March 2017

Delivered at:

Darwin

Delivered on:

14 March 2017

REPRESENTATION

Applicant appearing in person via videolink

Counsel for the Respondents:

Ms Buchanan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed 17 April 2015 be dismissed.
The Applicant pay the Respondent costs of and incidental to the application fixed in the sum of $6,825 within 30 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 19 of 2015

AMQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement 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 a decision by a departmental officer in an International Treaty Obligation Assessment (ITOA). The application for judicial review was filed on 21 April 2015. On 10 August 2015, the matter was adjourned by consent pending the decision of the Full Court of the Federal Court in a number of decisions, ultimately resulting in the decisions of the High Court in The Minister for Immigration v SZSSJ, The Minister for Immigration v SZTZI [2016] HCA 29; (2016) 90 ALJR 901, 334 ALR 653. The latter decision was relevant because it was an examination of the ITOA process. It disposed of many, if not all, of the arguments that have been raised by the applicant in this case.
At the time of the application the applicant was in immigration detention at Wickham Point outside Darwin. She told me that on 3 June 2016 she was released from immigration detention into the community. She said she met with a lawyer in July 2016. She has referred to a lawyer by first name, Michaela. The applicant told me that she assumed that there was, and I use a phrase in translation from Mandarin, “a class action” and that her lawyer was “looking after everything”. That is far from the case because there is no class…

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: [2017] FCCA 686
Decision Date: 14 March 2017

CaseChat Overview and Summary

The applicant, AMQ15, 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 the applicant's claims of persecution. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to properly consider the applicant's claims of past persecution and fear of future persecution, particularly in light of the evidence presented. This involved an examination of the delegate's assessment of the applicant's credibility and the weight given to various pieces of evidence.

Judge Young found that the delegate had failed to adequately address certain aspects of the applicant's claims, specifically regarding the alleged mistreatment by authorities in the applicant's country of origin. The Court held that the delegate's reasons for rejecting these claims were not sufficiently articulated and did not demonstrate a proper consideration of the evidence. The legal principle applied was that a decision-maker must provide reasons that are sufficient to enable a party to understand the basis of the decision and to identify any errors of law.

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

Orders