FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXV16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1914 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – jurisdictional error – corroborating evidence – real risk of significant harm – Al Malha Charitable Society. |
| Legislation: Migration Act 1958 Federal Circuit Court Rules 2001 |
| Applicant: | AXV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 808 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 20 March 2018 |
| Date of last submission: | 27 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Maxwell |
| Solicitors for the applicant: | Lander & Rogers Lawyers |
| Advocate for the respondents: | Mr Brown |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application filed on 21 April 2016 as amended on
28 February 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 808 of 2016
| AXV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal on 24 March 2016 (“the tribunal”).
In that decision, the tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the applicant a protection visa.
Background
The applicant was born in Bethlehem, Palestine on 5 February 1964.[1]
In 1965, he moved to Jordan with his parents and obtained Jordanian citizenship in early 1967.[2] Later, in 1967 the applicant moved to Kuwait with his family.[3] The applicant studied in India from 1985 until 1989.[4] The applicant returned to Jordan in 1991[5]…
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Details
- Case
- [2018] FCCA 1914
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Mercuri concerning an application by AXV16 (the applicant) against the Minister for Immigration. The dispute centred on the applicant's claims of being under surveillance and arrested due to his alleged involvement with a group known as the PJLF. The Administrative Appeals Tribunal had previously considered the applicant's evidence, including his assertions about surveillance and arrests in 2010 and 2011, and had also examined corroborating documents purportedly showing interest from security forces in 2010 and 2013.
The primary legal issue before the court was whether the Administrative Appeals Tribunal had committed a jurisdictional error in its assessment of the applicant's evidence. Specifically, the court was required to determine if the tribunal's conclusion that the applicant was not of interest to the security forces, and its decision to place no weight on certain corroborating documents, was irrational or illogical to the extent that it constituted a jurisdictional error. This involved considering whether the tribunal had adequately regarded and weighed all the evidence presented.
Judge Mercuri reasoned that a fair reading of the tribunal's reasons indicated that it had indeed considered the corroborating evidence and weighed it against other evidence before concluding that the applicant was not of interest to the security forces. The tribunal's finding that the applicant's evidence regarding arrests was vague and lacked credibility was also noted. The court referred to the High Court decision in *Minister for Immigration and Citizenship v SZJSS*, which addressed a similar situation where a tribunal gave "no weight" to supporting letters. In the present case, the court found that the tribunal's conclusion was open to it on the evidence and therefore did not exhibit the necessary irrationality or illogicality to establish jurisdictional error. The court made no specific orders as the provided text focuses on the reasoning and legal principles applied.
The primary legal issue before the court was whether the Administrative Appeals Tribunal had committed a jurisdictional error in its assessment of the applicant's evidence. Specifically, the court was required to determine if the tribunal's conclusion that the applicant was not of interest to the security forces, and its decision to place no weight on certain corroborating documents, was irrational or illogical to the extent that it constituted a jurisdictional error. This involved considering whether the tribunal had adequately regarded and weighed all the evidence presented.
Judge Mercuri reasoned that a fair reading of the tribunal's reasons indicated that it had indeed considered the corroborating evidence and weighed it against other evidence before concluding that the applicant was not of interest to the security forces. The tribunal's finding that the applicant's evidence regarding arrests was vague and lacked credibility was also noted. The court referred to the High Court decision in *Minister for Immigration and Citizenship v SZJSS*, which addressed a similar situation where a tribunal gave "no weight" to supporting letters. In the present case, the court found that the tribunal's conclusion was open to it on the evidence and therefore did not exhibit the necessary irrationality or illogicality to establish jurisdictional error. The court made no specific orders as the provided text focuses on the reasoning and legal principles applied.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In its decision record, the tribunal discussed the applicant’s evidence in relation to his claims that he had been under surveillance and arrested in January 2010 and March 2011 as a result of his involvement with the PJLF. This discussion is set out at paragraphs 34 to 36.[57] At paragraph 37 the tribunal sets out its conclusion and states:The Tribunal does not accept that the applicant was engaged in a secret organisation called the PJLF for the reasons set out above. It therefore does not accept that the applicant was placed under surveillance by the security 2008 or 2009 or that he was arrested in 2010 or 2011 because of his involvement or activities with the PJLF or that any other members of the PJLF were arrested. Further, the Tribunal finds the applicant’s evidence in relation to the claimed arrests to be vague and implausible … Further the Tribunal considers that his evidence… lacks credibility (emphasis added).[58][57] Paragraphs [34] to [36] of the tribunal’s decision record at page 22 of the court book. [58] Paragraph [37] of the tribunal’s decision record at page 22 of the court book. The tribunal then goes on to discuss the corroborating documents to which the applicant refers in ground one, ‘which … is an official document showing that the security forces wanted him in 2010 and 2013’.[59][59] Paragraph [38] of the tribunal’s decision record at page 22 of the court book. The tribunal concludes as follows:For the reasons set out above, the Tribunal does not accept that the security forces have any interest in the applicant and places no weight on the purported Public Security document or the email from the applicant’s wife.[60][60] Paragraph [39] of the tribunal’s decision record at page 22 of the court book. A fair reading of the tribunal’s reasons as a whole, lead to the conclusion which I have reached, that the tribunal did have regard to the corroborating evidence and did weigh that against the other evidence before it but concluded on balance that, the applicant was not of interest to the security forces.[61] The letters themselves go to the issue of the security forces’ interest in the husband. Paragraph 39 of the tribunal’s decision record when read together with paragraph 37 is evidence of that very weighing process.[62] This is a conclusion which was open to the tribunal on the evidence before it and therefore is not one which is affected by irrationality or illogicality in the sense necessary to find jurisdictional error.[61] Paragraph [38] and [39] of the tribunal’s decision record at page 22 of the court book. [62] Paragraphs [37] and [39] of the tribunal’s decision record at page 22 of the court book. In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48,[63] the court had to consider whether the then RRT had engaged in a jurisdictional error by choosing to give ‘no weight’ to letters produced by some of the claimants in support of their claims. In SZJSS, the tribunal relevantly stated:Although the Tribunal accepts that these two letters originated from the relevant school, the Tribunal gives no weight to their content in view of evidence the [first respondent] has presented the Tribunal over time undermining his claims about his purported political and social activism.[64][63] 243 CLR 164; 85 ALJR 306; 273 ALR 122; 119 ALD 446.[64] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164; 85 ALJR 306; 273 ALR 122; 119 ALD 446 at paragraph [17].
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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