APP18 v Minister for Home Affairs - [2019] FCCA 3401

FEDERAL CIRCUIT COURT OF AUSTRALIA

APP18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3401

Catchwords:
MIGRATION – Judicial review – decision of the Immigration Assessment Authority – where inconsistencies in statements of different people provided by applicant – whether the Authority was obliged to invite the applicant to comment on the inconsistencies – whether it is within the discretion of the Authority to not raise inconsistencies – exercise of discretion was not unreasonable – application dismissed – costs ordered.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

BVD17 v the Minister for Immigration and Border Protection [2019] HCA 34

Plaintiff M174/2016 v the Minister for Immigration and Border Protection (2018) 353 ALR 600

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Applicant:

APP18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 59 of 2018

Judgment of:

Judge Young

Hearing date:

31 October 2019

Date of Last Submission:

31 October 2019

Delivered at:

Adelaide

Delivered on:

31 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Kereru

Solicitors for the Applicant:

Camatta Lempens Pty Ltd Lawyers

Counsel for the First Respondent:

Mr Rettalick

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Mr Rettalick

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed 9 February 2018 be dismissed.
The applicant pay the first respondent’s costs in the scale amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 59 of 2018

APP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second 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 a decision of the Immigration Assessment Authority (“Authority”) made on 10 January 2018 affirming a delegate’s decision not to grant a protection visa to the applicant.
The background is as follows. The applicant arrived in Australia by sea from Vietnam in 2011. He was accompanied by an older sister. The applicant’s initial claims were that he and his sister were homeless or abandoned children. In simple terms, they were “street kids.”
He said that he had been born in 1999. He also said that he was 10 years old on arrival in Australia in 2011. He said that he had walked over 1,100 kilometres to get to Ho Chi Minh City in the south. He said that in 2009 he attended a protest over confiscation of church lands and, as I understand the Authority’s reasons, had walked another 1,100 kilometres back to the north to attend a protest in relation to that confiscation. He said that after attending that protest he had walked back to the coast and saw people praying on a boat. He had joined that group and, involuntarily it seems, came to Australia on that vessel.

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: [2019] FCCA 3401
Decision Date: 31 October 2019

CaseChat Overview and Summary

APP18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant the applicant a Protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The matter came before Judge Young in the Federal Court of Australia.

The central legal issue before the Court was whether the applicant's claimed fear of persecution was well-founded, specifically concerning their membership in a particular social group. This required the Court to consider the criteria for the grant of a Protection visa under the *Migration Act 1958* (Cth) and the relevant case law concerning the definition of a "particular social group" in the context of international refugee law. The Court also had to assess whether the Minister's delegate had properly considered all the evidence presented by the applicant and applied the correct legal principles in reaching their decision.

Judge Young's reasoning focused on the interpretation of "particular social group" as established in previous jurisprudence. The Court found that the applicant's asserted group, based on their shared experience of having been returned to their country of origin by Australian authorities, did not constitute a "particular social group" for the purposes of the *Migration Act*. The Court held that the shared characteristic of having been returned was not an immutable characteristic or a characteristic that was fundamental to the identity of the members of the group, nor was it a characteristic that was inherent to their identity in a way that would attract the protection of the Refugee Convention. Consequently, the Court concluded that the applicant had not established a well-founded fear of persecution based on membership of a particular social group.

The application for judicial review was dismissed.

Orders