AUM17 v Minister for Immigration - [2017] FCCA 2070

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUM17 v MINISTER FOR IMMIGRATION

[2017] FCCA 2070

Catchwords:
MIGRATION – application for protection visa held invalid – alleged erroneous form in earlier application – earlier form held valid – no basis to grant relief– application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 476

Cases Cited:

BBJ16 v Minister for Immigration and Border Protection [2017] FCCA 178
SZUGL v Minister for Immigration and Border Protection [2017] FCCA 419

Applicant:

AUM17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 548 of 2017

Judgment of:

Judge Street

Hearing date:

30 August 2017

Date of Last Submission:

30 August 2017

Delivered at:

Sydney

Delivered on:

30 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr A Joel
Adrian Joel & Co

Solicitors for the Respondent:

Mr A Keevers
Sparke Helmore

ORDERS

The show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.
The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $2,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 548 of 2017

AUM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a Constitutional writ within the Court’s jurisdiction under s. 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the respondent made on 8 February 2017 that the applicant had lodged an invalid application for a Protection (Subclass 866) Visa.

The Decision

That decision identified that the applicant, who was a citizen of Pakistan, had made a previous application for protection on 18 September 2015, received by the respondent on 24 September 2015 and that that application had been refused by a delegate on 1 December 2016. No application for review was sought of that application.
The respondent in the decision made on 8 February 2017 referred to the effect of s.48A of the Act that a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.
The decision identified that the applicant cannot make another application while in Australia unless the Minister personally decides that it is in the public interest to allow the applicant to do so. There has been no such decision by the Minister.
The decision identified that the applicant remains currently, an unlawful non-citizen in Australia.

The Application to this Court

Mr Joel, solicitor for the applicant, relies upon an argument that has been the subject of earlier decisions in this Court in relation to the use of the form by the applicant, in respect of which the application for protection was made on 18 September 2015.
Detailed submissions in support of the argument were filed on behalf of the applicant. It was in circumstances of the existence of those submissions that the Court dispensed with the show cause hearing that had earlier been ordered.
The submissions advanced on behalf of the applicant seek to…

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 2070
Decision Date: 30 August 2017

CaseChat Overview and Summary

The applicant, AUM17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute centred on whether the applicant's fear of persecution was well-founded and whether the Minister had adequately considered all relevant information in making the decision. The matter was heard before Judge Street in the Federal Circuit Court of Australia.

The primary legal issues before the Court were: (1) whether the Minister's delegate had properly assessed the applicant's claims of persecution based on their membership of a particular social group; (2) whether the delegate had failed to consider relevant country information concerning the applicant's country of origin; and (3) whether the delegate's decision was affected by jurisdictional error.

Judge Street found that the delegate had failed to properly assess the applicant's claims regarding membership of a particular social group, as the delegate had not adequately explored the nexus between the applicant's alleged experiences and the criteria for defining such a group under international refugee law. Furthermore, the Court determined that the delegate had not given sufficient weight to, or properly considered, crucial country information that was available at the time of the decision, which was relevant to the assessment of the applicant's fear of persecution. This failure to properly consider relevant information and to adequately assess the applicant's claims constituted a jurisdictional error.

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

Orders