Ard17 v Minister for Immigration - [2019] FCCA 2922

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARD17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2922

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – whether Tribunal considered or properly considered claim based on applicant’s being a Christian or an evangelising Christian – whether the Tribunal made an error by failing to consider whether the applicant would receive state protection – whether the Tribunal considered all of the applicant’s evidence – whether the Tribunal’s not being satisfied the applicant would face a real risk of significant harm in Nepal because of his Christianity was unreasonable or irrational given the matters the Tribunal accepted about the applicant’s being a Christian and the activities based on his being a Christian the applicant carried out in Australia and would continue to carry out if returned to Nepal – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.3

Migration Act 1958 (Cth), ss.417(1), 438, 476

Cases cited:

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50

SZQGU v Minister for Immigration and Citizenship [2012] FCA 340

SZQKC v Minister for Immigration and Citizenship [2012] FCA 29

Applicant:

ARD17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 474 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

8 October 2019

Date of Last Submission:

8 October 2019

Delivered at:

Sydney

Delivered on:

18 October 2019

REPRESENTATION

Applicant in person, assisted by an interpreter.

Solicitors for the First Respondent:

Ms S Zarucki of Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 474 OF 2017

ARD17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a national of Nepal, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection (Class XA) visa (Protection visa).

Background

The applicant arrived in Australia on 22 October 2007 on a student TU-573 visa. The applicant was granted two further student visas, but the second was cancelled on 18 May 2010 because the applicant did not attend classes. On 19 April 2011 the Migration Review Tribunal (MRT) affirmed the decision to cancel the applicant’s student visa. In the meantime, on 31 March 2011, the applicant applied for a Child (Residence) visa, but a delegate of the Minister refused…

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 2922
Decision Date: 18 October 2019

CaseChat Overview and Summary

The applicant, Ard17, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed a decision to refuse the grant of a protection visa. The applicant contended that the Tribunal had committed jurisdictional error in its assessment of his claims.

The primary legal issues before the Federal Circuit and Family Court of Australia were whether the Tribunal had failed to consider, or properly consider, the applicant's claim for protection based on his identity as a Christian and an evangelising Christian. Further, the court was asked to determine whether the Tribunal erred by failing to consider the availability of state protection for the applicant in Nepal, and whether the Tribunal had considered all of the applicant's evidence. The court also had to assess whether the Tribunal's conclusion that the applicant would not face a real risk of significant harm in Nepal due to his Christianity was unreasonable or irrational, given the evidence accepted by the Tribunal regarding the applicant's religious beliefs and activities.

His Honour Judge Manousaridis found that the Tribunal had adequately considered the applicant's claims. The Tribunal's reasons demonstrated that it had taken into account the applicant's Christian faith and his evangelising activities, both in Australia and as he proposed to continue them in Nepal. The Tribunal's assessment of the risk of harm was found to be a question of fact and degree, and its conclusion that the applicant had not established a real risk of significant harm was not demonstrably unreasonable or irrational. The court held that the Tribunal had considered the relevant evidence and had not made any jurisdictional error.

Orders