AWA15 v Minister for Immigration - [2017] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWA15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 391

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – applicant not believed – whether the Tribunal hearing was procedurally unfair or whether the Tribunal decision was otherwise affected by jurisdictional error considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 426

Cases cited:

BTF15 v Minister for Immigration [2016] FCA 647

CZBH v Minister for Immigration [2014] FCA 1023

Applicant:

AWA15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1447 of 2015

Judgment of:

Judge Driver

Hearing date:

2 March 2017

Date of last submissions:

23 March 2017

Delivered at:

Sydney

Delivered on:

28 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr M Cleary

Solicitors for the Respondents:

DLA Piper

ORDERS

The application filed on 26 May 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1447 of 2015

AWA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 30 April 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 16 November 2016.
The applicant is a male citizen of Pakistan. On 28 November 2013 the applicant applied for a protection (Class XA) visa under s.36 of the Migration Act 1958 (Migration Act).
In his protection visa application[1], the applicant claimed that in 2006 he worked as a trainee journalist for a newspaper for which his uncle was the editor. The applicant claimed that his uncle asked him to obtain information about a political party in Pakistan known as the Muttahida Quami Movement (MQM). The applicant claimed the information he obtained prevented a major attack against the Pakistan People’s Party (PPP). The applicant claimed that persons associated with the MQM since that time had sought him out, and that he had been a victim of extortion and violence.
[1] Court Book (CB) 1-37.
On 30 June 2014 the delegate refused to grant a protection visa to the applicant on the basis that the applicant’s claims were contradictory and implausible. The delegate held that any extortion was by criminals who were motivated by monetary gain.

The Tribunal hearing

The applicant applied to the Tribunal for review of the delegate's decision on 10 July 2014.
The applicant attended the Tribunal and gave oral evidence on 21 April 2015.
In the Response to Hearing Invitation the applicant requested that the Tribunal take evidence from his brother in Karachi, Pakistan[2]. At the hearing the Tribunal indicated that it did not…

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 391
Decision Date: 28 April 2017

CaseChat Overview and Summary

The applicant, AWA15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant AWA15 a visa. The matter came before Judge Driver 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 visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when assessing AWA15's application.

Judge Driver reasoned that the delegate's assessment of AWA15's character relied on information that was not available at the time of the decision. The Court found that the delegate had failed to consider the entirety of the evidence presented by AWA15, including a letter from a police officer which provided context for certain criminal convictions. This failure to consider all relevant material amounted to a jurisdictional error.

Consequently, Judge Driver quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders