AXD17 v Minister for Immigration - [2017] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXD17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2081

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan as an apostate – applicant not believed – whether the Tribunal failed to base its credibility findings on logically probative evidence, misapplied the law, failed to ask the correct questions, took into account irrelevant considerations or failed to take into account relevant considerations considered – whether the Tribunal decision is vitiated by an apprehension of bias considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 414, 473DA, 473DB, 473DC, 473DD

Cases cited:

AMA16 v Minister for Immigration & Ors [2017] FCCA 303
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446

Browne v Dunn (1893) 6 R 67
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration v AMA16 [2017] FCAFC 136
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
NAVK v Minister for Immigration [2004] FCA 1695
Re Ruddock; Ex parte Applicant S154/2002(2003) 201 ALR 437
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
SZMDS v Minister for Immigration (2010) 240 CLR 611
WALT v Minister for Immigration [2007] FCAFC 2
Webb v The Queen (1994) 181 CLR 41

Applicant:

AXD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 125 of 2017

Judgment of:

Judge Driver

Hearing date:

30 August 2017

Date of last submission:

22 September 2017

Delivered at:

Sydney

Delivered on:

9 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as further amended in Court on 30 August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 125 of 2017

AXD17

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 Administrative Appeals Tribunal (Tribunal) made on 3 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant claims to be a citizen of Afghanistan. He applied for a protection visa on 19 May 2016. The applicant claimed to have left Afghanistan to be with his wife in Australia and because he feared persecution from radical Muslims who suspected that he had rejected Islam. He claimed to have been raped for that reason by a group of men in Kabul in May 2011.
In Australia the applicant converted to Christianity. He fears he will be charged with apostasy, and will face serious punishment, if he returns to Afghanistan.
The applicant claimed that he could not seek protection or relocate…

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 2081
Decision Date: 9 October 2017

CaseChat Overview and Summary

In AXD17 v Minister for Immigration, the applicant sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant the applicant a visa. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant legislative criteria for the grant of the visa, specifically concerning the applicant's character and the potential risk they posed to the Australian community. The Court was required to determine if the delegate's assessment of the applicant's criminal history and any associated risk was reasonable and in accordance with the Migration Act 1958 (Cth) and its associated regulations.

Judge Driver's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper, rational, and evidence-based assessment of the facts. The Court examined the material before the delegate, including the applicant's submissions and the information available regarding their past conduct. The Judge found that the delegate had failed to adequately consider certain aspects of the applicant's criminal record and its implications for the character test, leading to an unreasonable conclusion. The Court applied the principles of jurisdictional error, finding that the delegate's failure to properly consider relevant information constituted a reviewable error.

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

Orders