ARA17 v Minister for Immigration - [2018] FCCA 342

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARA17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 342

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – Tribunal erred in unreasonably concluding the applicant did not have a well-founded fear of protection – whether the Tribunal erred by relying on the applicant’s failure to make certain claims – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Applicant retained legal representation – application to amend original application – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36

Cases cited:

BBO16 v Minister for Immigration & Border Protection [2017] FCA 212
CDZ16 v Minister for Immigration & Border Protection [2017] FCA 967
DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215; [2017] FCCA 308

MZANX v Minister for Immigration & Border Protection [2017] FCA 307

MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436; [2014] FCAFC 80

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; [2009] FCAFC 46

Applicant:

ARA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 95 of 2017

Judgment of:

Judge Smith

Hearing dates:

16 August 2017 & 13 February 2018

Date of Last Submission:

13 February 2018

Delivered at:

Perth

Delivered on:

23 February 2018

REPRESENTATION

Solicitors for the Applicant:

Mr N. Draper, Granich Partners

Solicitors for the Respondents:

Ms A. Ladhams, Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 95 of 2017

ARA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nigeria who arrived in Australia on 13 July 2015. His tourist visa was cancelled when he informed officers of the Department that he was in fact in Australia for business purposes and he was taken into immigration detention.
On 4 September 2015, the applicant applied for a protection visa. On 9 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 12 January 2017, the Tribunal affirmed the delegate’s decision.
The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, he must establish that the Tribunal’s decision was affected by jurisdictional error.

Background and claims

The applicant had a spare car parts business in Nigeria. In 2010 he travelled to Taiwan to locate, export and sell a variety of spare car parts for the purposes of his business. After spending some time unlawfully in Taiwan, the applicant returned to Nigeria on 16 September 2014.
On 5 October 2014, the applicant received a letter from the Movement for the Actualization of a Sovereign State of Biafra (MASSOB) inviting him to a meeting. He did not respond to that letter or attend the meeting.
On…

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: [2018] FCCA 342
Decision Date: 23 February 2018

CaseChat Overview and Summary

The applicant, ARA17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a protection visa. The AAT had affirmed the Minister for Immigration's refusal of the visa, concluding that ARA17 did not hold a well-founded fear of persecution. The matter came before Judge Smith of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had erred in law by unreasonably concluding that ARA17 did not possess a well-founded fear of persecution. This included determining whether the Tribunal had impermissibly relied on ARA17's failure to make certain claims in its assessment. The Court also considered an application by ARA17 to amend their original application.

Judge Smith found that the AAT's conclusion regarding the lack of a well-founded fear was not unreasonable, nor had the Tribunal committed jurisdictional error by relying on the applicant's failure to advance specific claims. The Court allowed the application to amend the original application. Ultimately, the application for judicial review was dismissed.

Orders