AYD15 v Minister for Immigration - [2017] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYD15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1946

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider a claim – whether the Tribunal properly considered the applicant’s claims under the complementary protection criterion – the Tribunal found the ‘real risk test’ was equivalent to the ‘real chance test’ – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136

Applicant:

AYD15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1518 of 2015

Judgment of:

Judge Nicholls

Hearing date:

28 March 2017

Date of Last Submission:

28 March 2017

Delivered at:

Sydney

Delivered on:

18 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Mack

Solicitors for the Applicant:

Westside Legal

Counsel for the Respondents:

Mr T Riley

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application made on 4 June 2015, amended on 13 August 2015 and further amended on 28 March 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1518 of 2015

AYD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (“the Act”) on 4 June 2015, amended on 13 August 2015 and ultimately further amended on 28 March 2017 (leave was granted at the hearing on that date), seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which on 1 May 2015, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister, and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

The applicant is a citizen of Sri…

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 1946
Decision Date: 18 August 2017

CaseChat Overview and Summary

The applicant, AYD15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant AYD15 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing AYD15's claims for protection.

Judge Nicholls found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The Court held that the delegate's assessment was superficial and did not engage with the specific evidence provided by AYD15. Consequently, the decision was vitiated by jurisdictional error. The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders