ASV16 v Minister for Immigration - [2017] FCCA 3076

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASV16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3076

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Cases cited:

SZTAL v Minister for Immigration and Border Protection;
SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Applicant:

ASV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 657 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

9 October 2017

Date of Last Submission:

9 October 2017

Delivered at:

Melbourne

Delivered on:

21 December 2017

REPRESENTATION

The Applicant appeared In Person

Advocate for the First Respondent:

Mr Cunynghame

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 657 of 2016

ASV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 March 2016, confirming a decision of a delegate to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka, who arrived in Australia on

30 July 2012 as an irregular maritime arrival. On 18 December 2012, the applicant applied for a protection visa. The applicant’s claims were set out in a detailed statutory declaration accompanying his protection visa application (see court book pp.109 to 113), listing a number of different bases upon which he claimed to fear harm, including:
a)His Tamil ethnicity.
b)His Hindu faith.
c)The alleged involvement of his stepbrother with the LTTE (who was killed in May 2009).
d)A claymore mine explosion close to where he was working as a mechanic.
e)The arrest of colleagues prior to his departure to Australia.
f)The possibility of being named to the criminal investigation department or Eelam People’s Democratic Party, or the Sri Lankan army and, ultimately, being killed on suspicion of past involvement with the LTTE.
The applicant attended an interview with the delegate on 16 December 2013, and followed up with written submissions by his representative on 23 September 2013. The delegate refused his application in July 2014.
In the Tribunal proceedings, the applicant applied on 31 July 2014, through his representative, who also made written submissions on his behalf on 25 February 2016.
On 1 March 2016, the applicant appeared before the Tribunal, gave evidence and presented arguments, with the assistance of an interpreter and his representative. At that interview, the applicant added new claims that the authorities had been making inquiries about him in the months that followed the claymore mine explosion, and significantly that he had also been kidnapped by members of the Karuna Group, where he was blindfolded and beaten: see [43] to [45] of the decision.
A central difficulty confronting the applicant’s claim was the finding by the…

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 3076
Decision Date: 21 December 2017

CaseChat Overview and Summary

The applicant, ASV16, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The matter came before Judge Riethmuller in the Federal Circuit and Family Court of Australia. The core of the dispute concerned the applicant's claims of persecution and the assessment of the evidence provided in support of those claims.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered all relevant evidence, including the applicant's claims of past persecution and fear of future persecution, and whether the delegate's findings of fact were reasonably open on the evidence. The Court also considered whether the delegate had applied the correct legal test in assessing the applicant's claims.

Judge Riethmuller found that the delegate had failed to adequately consider certain key aspects of the applicant's evidence, particularly in relation to the alleged persecution. The Court held that the delegate's assessment of the evidence was not reasonably open on the material before them, constituting a failure to exercise jurisdiction according to law. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and provide reasons that are logically coherent and rationally based on that evidence.

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

Orders