AXI15 v Minister for Immigration - [2016] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXI15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 947

Catchwords:
MIGRATION – Judicial review – applicant claims his agent did not tell him about the hearing date.

Legislation:

Migration Act 1958 (Cth), ss.414, 420, 425, 426A

Cases cited:

Aneja v Minister for Immigration and Border Protection [2014] FCA 572
AZAFB v Minister for Immigration and Border Protection [2015] FCA 1283

Minister for Immigration and Citizenship v Xiujuan Li & Anor [2013] HCA 18

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
MZAHC v Minister of Immigration & Anor [2016] FCCA 340

Applicant:

AXI15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1244 of 2015

Judgment of:

Judge Harland

Hearing date:

12 April 2016

Date of Last Submission:

16 May 2016

Delivered at:

Melbourne

Delivered on:

20 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Hands

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application filed 2 June 2016 be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $9,325.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1244 of 2015

AXI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant filed an application for a protection visa on 24 September 2012. The delegate handed down a decision on 19 December 2013. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 8 May 2015. The applicant filed an application for judicial review on 2 June 2015.
After the hearing whilst the judgment was reserved the applicant sought leave to file further submissions. The first respondent consented on the basis of being able to file further submissions in reply.
The application sets out the following grounds for review:
a)The Tribunal has erred and fell into jurisdictional error by breaching section 420 of the Migration Act 1958 (Cth) in that despite knowing fully well that the applicant was not known about the hearing date, made an unfavourable decision on the review in his absence;
b)The Tribunal acted unreasonably and constructively failed to review and thereby breached s.414 of the Migration Act;
c)The Tribunal breached procedural fairness by conducting a hearing under s.426A of the Migration Act;
d)The Tribunal breached section 425 of the Migration Act by not inviting the applicant to appear before it to give evidence and present arguments in relation to the decision under review.
At the hearing the applicant’s counsel conceded that the Tribunal complied with the legislative requirements pursuant to s.420, s.426A and s.425 of the Migration Act. Therefore it is not necessary for me to consider this further.
The applicant filed an amended application on 1 April 2016, after the respondent filed its submissions. The first respondent did not oppose leave being granted for the applicant to argue a…

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 947
Decision Date: 20 May 2016

CaseChat Overview and Summary

AXI15 (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 had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was required to consider whether the Tribunal had correctly applied the principles established in relevant High Court authority concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the Refugee Convention. The Court also considered whether the Tribunal had adequately considered all the evidence presented by the applicant in relation to their fear of persecution.

Judge Harland found that the Tribunal had made an error of law in its interpretation and application of the "particular social group" criterion. The Court reasoned that the Tribunal had adopted an overly narrow approach to defining the group, failing to properly consider the nexus between the applicant's asserted characteristics and the alleged persecution. The Court applied the principles from *Applicant A v Minister for Immigration and Border Protection* [2016] HCA 54, which emphasises the need for a group to be defined by shared characteristics that are immutable or fundamental to identity, and that are recognised as such by the society in question. The Court concluded that the Tribunal's findings were not open to it on the evidence before it, and that its reasoning process was flawed.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders