AVQ15 v Minister for Immigration - [2017] FCCA 893

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVQ15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 893

Catchwords:
MIGRATION – Inconsistency in evidence – failure to refer to full details of claims when more detailed claims were presented as evidence to the Tribunal which gave rise to a finding of inconsistency – whether the Tribunal gave active consideration of claims in relation to conditions in Sri Lankan prisons – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36 (2A), 65

Cases cited:

SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Applicant:

AVQ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1175 of 2015

Judgment of:

Judge McNab

Hearing date:

13 February 2017

Date of Last Submission:

13 February 2017

Delivered at:

Melbourne

Delivered on:

4 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Harris Wake

Counsel for the Respondents:

Mr Browne

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1175 of 2015

AVQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

By an application filed on 25 May 2015 and amended 11 January 2017, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 22 April 2015. By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the Applicant a Protection visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant is a national of Sri Lanka who is of Tamil ethnicity and applied for the visa on 21 November 2012. The Applicant made a number of claims for protection, including that: he had been persecuted by Sri Lankan authorities in his home town and upon relocating; and he faced a real chance of suffering significant harm in a Sri Lankan prison as a consequence of having fled Sri Lanka illegally.
The Tribunal member, by decision dated 22 April 2015, raised credibility concerns in relation to the inconsistency between the Applicant’s statutory declaration in support of his application for a Protection visa and the evidence given by the Applicant at the Tribunal hearing on 16 February 2015. The Tribunal member highlighted various inconsistencies in the Applicant’s evidence in relation to what happened to the Applicant upon relocation, pointing out that his statutory declaration omits reference to any claim that the army located him or made contact with him or his family.[1] In contrast, the Tribunal member noted that the oral evidence given by the Applicant at the hearing included claims that:[2]
…his mother disclosed to the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people in civilian…

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 893
Decision Date: 4 May 2017

CaseChat Overview and Summary

AVQ15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinions. The Minister had refused the visa on the grounds that the applicant did not meet the criteria for a protection visa, specifically concerning the assessment of their claims of persecution. The matter came before Judge McNab in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or give sufficient weight to relevant evidence, or had otherwise acted in a manner that vitiated the lawfulness of the decision-making process. Specifically, the Court examined whether the delegate had adequately assessed the applicant's claims of ethnicity-based persecution and persecution due to political opinion, and whether the delegate's findings were supported by the evidence before them.

Judge McNab found that the delegate had failed to properly consider and assess crucial aspects of the applicant's claims regarding persecution. The Court determined that the delegate had overlooked or given insufficient weight to significant evidence presented by the applicant concerning the treatment of their ethnic group and the political climate in their country of origin. This failure to engage with the evidence in a meaningful way constituted a jurisdictional error, as it meant the delegate had not undertaken the assessment required by the relevant legislation. Consequently, the Minister's decision was vitiated by this error.

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

Orders