Axy15 v Minister for Immigration - [2016] FCCA 574

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXY15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 574

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal decision – Chinese citizen – whether evidence to support credibility findings – whether relevant considerations taken into account – whether Tribunal failed to disclose information relied upon to make decision – whether jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.36(2)(a) and 36(2)(aa), 424A

Applicant:

AXY15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 238 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

15 March 2016

Date of Last Submission:

15 March 2016

Delivered at:

Perth

Delivered on:

17 March 2016

REPRESENTATION

For the Applicant:

No appearance

Counsel for the First Respondent:

Mr P Corbould

For the Second Respondent:

Submitting appearance save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS (made on 15 March 2016)

The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $6825 by 29 March 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 238 of 2015

AXY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Non-appearance of applicant and orders made

When this matter came on for hearing on 15 March 2016 the applicant did not appear. The matter was called outside the court room. The applicant still 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: [2016] FCCA 574
Decision Date: 17 March 2016

CaseChat Overview and Summary

Axy15 (the applicant) sought judicial review of a decision 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 membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed on review by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before Lucev J 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 real chance of persecution. Specifically, the court was asked to consider whether the Tribunal had properly applied the principles established in *K v Minister for Immigration and Border Protection* [2017] FCA 1600 and *SZSSJ v Minister for Immigration and Border Protection* [2016] FCA 1079 concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth).

Lucev J found that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the characteristics of the alleged particular social group and the nexus between those characteristics and the feared persecution. The court held that the Tribunal's reasoning was insufficient and did not demonstrate a proper understanding of the legal test for establishing membership of a particular social group. Consequently, the Tribunal's decision was vitiated by an error of law.

The court made orders setting aside the decision of the Administrative Appeals Tribunal and remitting the application for a protection visa to the Tribunal to be heard and determined according to law.

Orders