Avu15 v Minister for Immigration - [2016] FCCA 3065

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVU15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3065

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (Class XA) visa – whether Tribunal brought dispositive issue to applicant’s attention – whether Tribunal properly considered prison conditions in Sri Lanka.

Cases cited:
BEV15 v Minister for Immigration and Border Protection [2016] FCA 507
Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069

Applicant:

AVU15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1436 of 2015

Judgment of:

Judge Riley

Hearing date:

18 October 2016

Date of last submission:

18 October 2016

Delivered at:

Melbourne

Delivered on:

29 November 2016

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

WLW Migration Lawyers

Counsel for the first respondent:

Liam Brown

Solicitors for the first respondent:

Spark Helmore Lawyers

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore Lawyers

ORDERS

The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.
The application filed on 26 May 2015 and amended on 4 October 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1436 of 2015

AVU15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant left Sri Lanka illegally by boat on 10 June 2012 and arrived in Australia on 1 July 2012.
The applicant attended a hearing before the Tribunal on 27 April 2015. He was assisted at the hearing by an interpreter and his migration agent, Refugee and Immigration Legal Centre Inc.
The applicant claimed to be a Tamil Christian from the Northern Province of Sri Lanka. The applicant made various claims about being forcibly recruited by the Liberation Tigers of Tamil Eelam (“LTTE”) and other related claims. However, the Tribunal considered that all of the applicant’s LTTE related claims were fabricated.
The Tribunal accepted that the applicant was a Tamil from the north who had left Sri Lanka illegally. The Tribunal accepted that the CID might interview the applicant if he returned to Sri Lanka. However the Tribunal did not accept that the applicant faced a real risk of serious or significant harm.
The Tribunal said at paragraph 106 of its reasons for decision:
In making those findings, the Tribunal has accepted that the applicant will go through the process at the airport as summarised in the DFAT country report, which will involve questioning and checking. It accepts that he will be charged under the Immigrants and…

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: [2016] FCCA 3065
Decision Date: 29 November 2016

CaseChat Overview and Summary

Avu15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant the applicant 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 opinion. 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 primary legal issue before Judge Riley was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered all relevant evidence, applied the correct legal tests, and made findings of fact that were reasonably open to them on the evidence. Specifically, the court considered whether the delegate had adequately assessed the applicant's claims of ethnicity-based and political persecution, and whether the delegate's adverse credibility findings were justified.

Judge Riley found that the delegate had made a jurisdictional error by failing to properly consider and assess crucial aspects of the applicant's evidence regarding their ethnicity and political activities. The delegate's adverse credibility findings were found to be based on an incomplete and unbalanced assessment of the evidence, leading to an erroneous conclusion that the applicant's claims were not credible. The court held that the delegate had not adequately grappled with the specific details provided by the applicant, nor had they properly applied the relevant legal standards for assessing protection claims.

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

Orders