Ashraf v Minister for Immigration - [2017] FCCA 1861

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHRAF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1861

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal misconstrued and misapplied the law – application dismissed.

Legislation:

Migration Regulations1994 (Cth), Schedule 2, cl.572.223, Schedule 5A, cl.5A407

Cases cited:

Commissioner of Superannuation v Fay Olive Scott (1987) 13 FCR 404; [1987] FCA 79

Kelly v Australian Postal Corporation (2015) 67 ALR 359; [2015] FCA 1064
Maestro & Anor v Minister for Immigration and Border Protection & Anor (2016) 308 FLR 48; [2016] FCCA 1095
Mia v Minister for Immigration and Citizenship [2010] FCA 1312
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Palser v Grinling [1948] AC 291

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd [1982] FCA 206; (1982) 44 ALR 557
Seneviratne v Minister for Immigration and Citizenship & Anor [2009] FMCA 907
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors [1979] FCA 85; (1979) 27 ALR 367
WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534; [2013] FCA 327

First Applicant:

MUHAMMAD KAMRAN ASHRAF

Second Applicant:

UROOSA KAMRAN

Third Applicant:

HOOR KAMRAN

Fourth Applicant:

MUHAMMAD WALI KAMRAN

Fifth Applicant:

MUHAMMAD ARMAN KAMRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1731 of 2015

Judgment of:

Judge Barnes

Hearing date:

9 December 2016

Delivered at:

Sydney

Delivered on:

9 August 2017

REPRESENTATION

Counsel for the Applicants:

Mr Nair (direct brief)

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1731 of 2015

MUHAMMAD KAMRAN ASHRAF

First Applicant

UROOSA KAMRAN

Second Applicant

HOOR KAMRAN

Third Applicant

MUHAMMAD WALI KAMRAN

Fourth Applicant

MUHAMMAD ARMAN KAMRAN

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) dated 28 May 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants Student (Temporary) (Class TU) visas.
The Applicants, husband and wife and their three children, applied for the Student visas on 29 September 2014. The Second to Fifth Applicants applied as members of the First Applicant’s family unit.
The First Applicant is referred to for convenience as the Applicant. At the time of the visa application he was the holder of a Subclass 573 Student visa, which was to cease on 30 September 2014. He indicated that he had studied an English course from November 2012 to March 2013 and a Diploma of Business course from October 2013 to April 2014 in Australia…

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 1861
Decision Date: 9 August 2017

CaseChat Overview and Summary

Ashraf (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution upon return to his home country due to his perceived association with a political party. The matter came before Judge Barnes of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant information, including the applicant's subjective claims of fear and the objective country information pertaining to Afghanistan, when making the decision to refuse the protection visa.

Judge Barnes found that the delegate had made an error of law by failing to adequately assess the applicant's subjective claims of fear in light of the objective country information. The Court held that the delegate had not properly engaged with the applicant's specific concerns about potential persecution, particularly in relation to his alleged political affiliations and the general security situation in Afghanistan. The reasoning applied was that a proper assessment requires a holistic consideration of both the applicant's personal circumstances and the prevailing conditions in their country of origin, ensuring that the subjective fear is evaluated against the objective realities.

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

Orders