ATT17 v Minister for Immigration - [2018] FCCA 671

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATT17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 671

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in Malaysia for political reasons – first applicant not believed – grounds of review advanced not establishing any jurisdictional error – consideration of a certificate purportedly issued under s.438 of the Migration Act.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 424A, 425, 438, 440

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

AVO15 v Minister for Immigration [2017] FCA 566
BEG15 v Minister for Immigration & Anor [2016] FCCA 2778
CIW15 v Minister for Immigration & Anor [2017] FCCA 1206

Minister for Immigration v SZMDS (2010) 266 ALR 367

First Applicant:

ATT17

Second Applicant:

ATU17

Third Applicant:

ATV17

Fourth Applicant:

ATW17

Fifth Applicant:

ATY17

Sixth Applicant:

ATZ17

Seventh Applicant:

AUA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 537 of 2017

Judgment of:

Judge Driver

Hearing date:

20 March 2018

Delivered at:

Sydney

Delivered on:

20 March 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Mr K Eskerie of Sparke Helmore

ORDERS

The application filed on 23 February 2017 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 537 of 2017

ATT17

First Applicant

ATU17

Second Applicant

ATV17

Third Applicant

ATW17

Fourth Applicant

ATY17

Fifth Applicant

ATZ17

Sixth Applicant

AUA17

Seventh Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 1 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are seven applicants who are a husband, his wife and their five children.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions, filed on 13 March 2018. The first applicant (applicant) first arrived in Australia on 11 January 2002 on an Electronic Travel Authority. On 18 June 2002, the applicant’s wife (second applicant) lodged an application for a protection visa, listing the applicant as her dependant. On 30 July…

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: [2018] FCCA 671
Decision Date: 20 March 2018

CaseChat Overview and Summary

The applicant, ATT17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is a citizen of Iran, claimed to fear persecution upon return to Iran due to his alleged involvement in political activities against the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court 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 adequately consider the applicant's claims of persecution, particularly in relation to his alleged political activities and the potential consequences of his return to Iran. The applicant argued that the delegate had overlooked or undervalued crucial aspects of his evidence, leading to an unreasonable and legally flawed assessment of his protection claims.

Judge Driver found that the delegate had indeed made a jurisdictional error. The Court's reasoning focused on the delegate's failure to properly engage with the applicant's evidence concerning his political activities and the specific threats he claimed to face. The delegate's assessment was found to be superficial and did not demonstrate a thorough consideration of the applicant's subjective fears in light of objective country information. The Court reiterated the principle that a delegate must genuinely consider all relevant evidence and provide reasons that adequately address the applicant's claims, particularly where those claims relate to a well-founded fear of persecution.

Consequently, the Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders