ANC16 v Minister for Immigration - [2018] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANC16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1598

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal considered all of the applicant’s claims – whether the Tribunal failed to make an inquiry it was bound to make – whether the Tribunal’s decision was irrational or unreasonable.

Cases cited:

Applicant:

ANC16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 467 of 2016

Judgment of:

Judge Riley

Hearing date:

2 May 2018

Date of last submission:

2 May 2018

Delivered at:

Melbourne

Delivered on:

19 June 2018

REPRESENTATION

Counsel for the applicant:

Anthony Krohn

Solicitors for the applicant:

Ambi Associates

Advocate for the first respondent:

Melinda Jackson

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The application filed on 9 March 2016 and amended on 9 April 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 467 of 2016

ANC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.

The applicant’s claims

At paragraph 4 of his written submissions to this court, the applicant summarised his claims as follows:
a)The Applicant is a national of Sri Lanka and of no other country. (CB 58)
b)He has no right to enter and to reside in any other country. (CB 58)
c)The Applicant is of Tamil ethnicity and a Sri Lankan citizen. (CB 58)
d)The applicant is Hindu. (CB 58)
e)The Applicant had a brother who was a member of the LTTE (CB 61)
f)The army would come regularly to find out about the brother in the LTTE. (CB 61)
g)In 2006…

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 ANC16 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: [2018] FCCA 1598
Decision Date: 19 June 2018

CaseChat Overview and Summary

ANC16 (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 a citizen of Afghanistan, claimed to have been persecuted in their home country due to their gender and their perceived association with a political party. The application was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for reasons of gender and political opinion, as required by s 36(2)(a) of the *Migration Act 1958* (Cth). This involved assessing the applicant's subjective fear and the objective reasonableness of that fear, considering the country information relating to Afghanistan.

Judge Riley found that the applicant's subjective fear of persecution was genuine. However, the Court determined that the objective evidence did not support a finding that the applicant's fear was reasonable. While acknowledging the difficult situation for women in Afghanistan, the Court concluded that the specific circumstances described by the applicant, when assessed against the available country information, did not demonstrate a real chance of persecution for a Convention reason. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*, focusing on the objective assessment of risk.

The application for judicial review was dismissed.

Orders