AUU15 v Minister for Immigration - [2017] FCCA 2220

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUU15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2220

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – same Tribunal member hears two different applications for review – Tribunal sends letter (424A Letter) apparently pursuant to s.424A of the Migration Act 1958 (Cth) (Act) to the applicant in the other review and receives from that applicant a response to the 424A Letter – whether by sending the 424A Letter and receiving the response the Tribunal sought and got information in conducting the review within the meaning of s.424(1) of the Act – whether s.424 of the Act precluded the Tribunal from relying on information other than the other applicant’s response to the 424A Letter (Other Information) of which the Tribunal became aware in conducting the other review – whether the Other Information was “information” for the purposes of s.424A of the Act – no jurisdictional error.

Legislation:

High Court Rules 2004 (Cth), r.41.08.1

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

Cases cited:

ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106
SZTNL v Minister for Immigration and Border Protection [2015] FCA 463

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Vo v Minister for Immigration and Border Protection [2017] FCCA 1170

Applicant:

AUU15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1393 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

10 August 2016

Delivered at:

Sydney

Delivered on:

13 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr R Chia

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1393 of 2015

AUU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a citizen of Pakistan, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The grounds on which the applicant relies arise out of the Tribunal’s making a credibility finding adverse to the applicant partly on the basis of a finding that the applicant had planned and orchestrated with another person (Ms ATP15) to travel…

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.

Keep reading for free

Create a free CaseChat account to read AUU15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2220
Decision Date: 13 September 2017

CaseChat Overview and Summary

AUU15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinions. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider all relevant aspects of their claim, including evidence of past persecution and the objective country information pertaining to their ethnicity and political beliefs. The applicant contended that the delegate's assessment of credibility was unreasonable and that the delegate had not adequately engaged with the applicant's subjective fears.

Judge Manousaridis found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding past persecution and the objective country information. The Court held that the delegate's assessment of credibility was flawed because it did not properly weigh all the evidence presented by the applicant, including their oral testimony and documentary evidence. The Court reiterated the principle that a delegate must engage with and assess all aspects of a protection visa claim, and that a failure to do so can constitute jurisdictional error. The Court concluded that the delegate's decision was vitiated by this error.

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

Orders