Ark16 v Minister for Immigration - [2017] FCCA 3087

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARK16 v MINISTER FOR IMMIGRATION

[2017] FCCA 3087

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant for judicial review had been granted a Visitor visa subject to condition 8503 “No Further Stay” – request to Minister to waive the condition – Delegate refuses request on basis that no compelling circumstances had been established – Delegate’s decision not affected by jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 338.

Migration Regulations 1994 (Cth)

Cases cited:

Ahmed v Minister for Immigration and Border Protection [2015] FCA 812
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Kaur v Minister for Immigration and Citizenship [2011] FCA 969
Kumar v Minister for Immigration and Border Protection [2016] FCA 1330
Liu v Minister for Immigration and Border Protection [2015] FCA 1368
PlaintiffM64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173
Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899

Applicant:

ARK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2016 of 2016

Judgment of:

Judge Dowdy

Hearing date:

21 March 2017

Date of Last Submission:

7 December 2017

Delivered at:

Sydney

Delivered on:

15 December 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr L Leerdam

Solicitors for the Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

Direct that the Court Book be marked Exhibit A.
Direct that the Notification Letter and Visa Grant Notice, each dated 18 November 2013, be marked Exhibit B.
The Application filed in this Court on 28 July 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2016 of 2016

ARK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Lebanon aged 28 years, having been born on 6 May 1989.
By Application filed in this Court on 28 July 2016 he seeks by constitutional writs to quash and have redetermined according to law the decision of the Delegate (Delegate) of the Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 July 2016 refusing to waive Condition 8503 of Sch.8 (Condition 8503) to the Migration Regulations 1994 (Cth) (the Regulations), to which his single entry Short Stay Sponsored (Visitor) (Class UL) Sponsored Family Visitor (Subclass 679) visa (Visitor visa) was subject under the Migration Act 1958 (Cth) (the Act).

Relevant Factual and Legal Background

After his arrival in Australia on 19 January 2014 on the Visitor visa the Applicant applied for a Protection visa on 5 March 2014 which was refused by a Delegate of the Minister on 4 August 2014. He applied to the Refugee Review Tribunal (RRT) for a merits review of the Delegate’s decision, but the Delegate’s refusal was affirmed by the RRT on 26 October 2015. The Applicant’s application to this Court for…

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 3087
Decision Date: 15 December 2017

CaseChat Overview and Summary

Ark16 (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 had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed on internal review. The applicant then brought proceedings in the Federal Court of Australia seeking to challenge this refusal.

The central legal issue before Dowdy J was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the court was required to determine if the delegate had failed to properly consider the applicant's claims regarding their membership of a particular social group and the real risks of persecution they alleged. This involved an examination of whether the delegate had applied the correct legal test for assessing claims of persecution based on membership of a particular social group under the *Migration Act 1958* (Cth) and relevant international conventions.

Dowdy J found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims concerning their membership of a particular social group. The court reasoned that the delegate's assessment had been superficial and had not engaged with the specific evidence provided by the applicant regarding the nature of the group and the risks faced by its members. The judge applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a thorough and evidenced-based evaluation of the applicant's subjective fears and the objective realities of persecution. The court concluded that the delegate's failure to properly consider these aspects rendered the decision invalid.

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

Orders