Axu16 v Minister for Immigration - [2017] FCCA 1553

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXU16 v MINISTER FOR IMMIGRATION

[2017] FCCA 1553

Catchwords:
MIGRATION – Application for injunctive and other relief – Iraqi citizen – deportation order – where none of the grounds of the application are made out – whether serious issue to be tried – whether application has sufficient prospects of success – where balance of convenience lies – where no reasonable prospects of success or serious issue to be tried – where applicant has significant criminal record which resulted in revocation of residence visa.

Legislation:

Federal Court of Australia Act 1976 (Cth), s.32AB

Migration Act 1958 (Cth), ss.48A, 48B, 91X, 197C, 198, 476, 476A, 501

Cases cited:

ALY15 v Minister for Immigration & Border Protection [2017] FCA 281
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457
BTA15 v Minister for Immigration & Border Protection [2017] FCA 422

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Whittaker v Minister for Immigration & Border Protection [2017] FCA 494
WZATU v Minister for Immigration & Anor [2016] FCCA 2247; (2016) 314 FLR 416
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant:

AXU16

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

PEG 363 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

5 July 2017

Date of Last Submission:

5 July 2017

Delivered at:

Perth

Delivered on:

14 July 2017

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the Respondent:

Mr P R Macliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS (as made on 5 July 2017)

The name of the applicant be amended to “AXU16” on all documents in the proceedings.
The application be dismissed.
Formal written reasons for judgment be published electronically from Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $3606 by 3 August 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 363 of 2017

AXU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

By order of the Federal Court made on 4 July 2017 under s.32AB of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) the Federal Court transferred these proceedings, in which it had no jurisdiction, to this Court. The Federal Court’s power to transfer proceedings in respect of which it has no jurisdiction to hear the subject matter of the proceedings to this Court has been upheld in a number of cases, most recently in Whittaker v Minister for Immigration & Border Protection [2017] FCA 494 at [19] per Derrington J (and see…

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 1553
Decision Date: 14 July 2017

CaseChat Overview and Summary

Axu16 (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 arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinions. 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 matter came before Antoni Lucev J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess all relevant aspects of their protection claims, including their ethnicity and political opinions, and that the delegate's adverse credibility findings were not open on the evidence. The applicant contended that this failure amounted to a jurisdictional error, rendering the decision invalid.

His Honour reviewed the delegate's assessment of the applicant's claims and the reasons provided for the adverse credibility findings. The Court applied the principles established in cases concerning the assessment of protection claims, including the need for a comprehensive and balanced consideration of all evidence, and the proper application of the non-refoulement obligations under the *1951 Convention relating to the Status of Refugees* and its *1967 Protocol*. His Honour found that the delegate had adequately considered the applicant's claims and that the adverse credibility findings were open on the evidence before the delegate. The Court concluded that there was no jurisdictional error in the delegate's decision-making process.

The application for judicial review was dismissed.

Orders