ATT16 v Minister for Immigration - [2020] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATT16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2449

Catchwords:
MIGRATION – Protection visa – where applicant failed to attend interview with delegate – where applicant failed to attend Tribunal hearing due to ‘human error’ on their own behalf– where application for reinstatement refused by Tribunal – where applicant seeks judicial review – where applicant failed to attend Court hearing – where there has been no error in law –application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(e).

Migration Act 1958 (Cth), ss 36, 35, 425A, 426, 426A, 441A, 441G, 474, 476

Cases cited:

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383
Kang v Minister for Immigration [2017] FCCA 2785
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration v Li (2013) 249 CLR 332
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184

Applicant:

ATT16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 690 of 2016

Judgment of:

Judge A Kelly

Hearing date:

13 August 2020

Date of Last Submission:

13 August 2020

Delivered at:

Melbourne

Delivered on:

15 October 2020

REPRESENTATION

Applicant:

No appearance

Solicitor advocate for the Respondents:

Ms K. Whittemore

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The orders of the Court are as follows:

Pursuant to section 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before this Court by audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave to amend the application filed on 6 April 2016, so as to seek review of the decision of the Administrative Appeals Tribunal made on 3 March 2016 dismissing his application for review.
The amended application be dismissed.
The applicant pay the costs of the first respondent, fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 690 of 2016

ATT16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Revised from ex tempore reasons)

Introduction

By application dated 6 April 2016, as amended by leave in the course of the hearing, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 March 2016, affirming its decision to dismiss his application dated 3 March 2016. The application to the Tribunal sought review of a decision of a delegate of the first respondent (Minister), refusing to grant him a Protection (Class XA) visa (visa), pursuant to section 65 of the Migration Act 1958 (Cth) (Act).

Background

The applicant, a male citizen of Punjabi ethnicity, aged 32 years, first…

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: [2020] FCCA 2449
Decision Date: 15 October 2020

CaseChat Overview and Summary

The applicant, ATT16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in failing to properly assess the applicant's claims of past persecution and the real chance of future persecution should they be returned to their country of origin. Specifically, the Court was required to determine if the delegate had adequately considered all relevant evidence and applied the correct legal standards in assessing the credibility of the applicant's account and the objective country information.

Judge A Kelly found that the delegate had failed to adequately consider certain aspects of the applicant's evidence regarding past persecution, particularly in relation to the alleged actions of specific individuals. The Court held that the delegate's assessment of the risk of future persecution was consequently flawed, as it did not properly take into account the cumulative impact of the past events and the potential for them to recur. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a thorough and holistic evaluation of all available evidence.

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

Orders