ATO17 v Minister for Immigration - [2017] FCCA 2542

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATO17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2542

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the adverse findings in relation to the applicant were open – no obligation enlivened under s 424A – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant:

ATO17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 528 of 2017

Judgment of:

Judge Street

Hearing date:

24 October 2017

Date of Last Submission:

24 October 2017

Delivered at:

Sydney

Delivered on:

24 October 2017

REPRESENTATION

Solicitors for the Applicant:

Mr T Rurner
Turner Coulson Immigration Lawyers

Solicitors for the Respondents:

Mr A Keevers
Sparke Helmore

ORDERS

Grant leave to the applicant to rely upon the amended application filed 10 October 2017.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 528 of 2017

ATO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 January 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of China. The applicant arrived in Australia on 29 March 2008 having applied for a Student visa on 12 February 2008. The applicant arrived on a Student (Subclass 572) visa which was valid until 14 May 2010. The applicant departed Australia on 12 October 2009 returning back to China and then came back to Australia on 3 November 2009. The applicant applied for a second TU 572 visa on 22 March 2010 which was valid until 4 May 2011. The applicant then remained unlawfully in Australia from 20 May 2011 until the making of this application for protection on 21 May 2014.
The applicant’s claims for protection largely centred on his association with his father who allegedly came to the attention of the authorities due to his opposition of the alleged corrupt government. The applicant alleged in 1996 his family home was broken into by locals who intended to arrest his father but they could not locate his father and they took his mother instead and assaulted her. The applicant alleged his father tried on various occasions to publicise and object to government corruption and that this brought him to the attention of officials who punished him by charging him, heavily taxing him and being violent towards him. In 2005 the applicant alleged his father protested the mining activities of a local company and was beaten by underworld figures and then charged with assault himself.
The applicant alleged that he became involved with some…

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 2542
Decision Date: 24 October 2017

CaseChat Overview and Summary

The applicant, ATO17, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant the applicant a visa. The dispute concerned the applicant's eligibility for a protection visa under the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the applicant's claims of persecution. This involved an assessment of whether the delegate's findings of fact were supported by evidence and whether the delegate had correctly applied the legal tests for establishing a well-founded fear of persecution.

Judge Street found that the delegate's decision contained errors of law. The delegate had failed to adequately consider certain aspects of the applicant's evidence and had applied an incorrect legal standard when assessing the likelihood of future persecution. The Court reiterated the principle that a delegate must undertake a comprehensive and balanced assessment of all available evidence, giving due weight to the applicant's subjective experience while also considering objective factors. The delegate's failure to properly engage with the applicant's specific claims and the relevant legal framework meant that the decision was vitiated by jurisdictional error.

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

Orders