Azafd v Minister for Immigration

[2015] FCCA 1352

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1352

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 477, 499

Applicant: AZAFD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: GRAHAM BARTER, INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: ADG 263 of 2014

Judgment of: Judge Street

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Adelaide

Delivered on: 18 May 2015

REPRESENTATION

Counsel for the Applicant: Mr M. Wait

Solicitors for the Applicant: Kate Wycherley

Counsel for the Respondent: Ms A. Bain

Solicitors for the Respondent: Sparke Helmore

ORDERS

THE COURT DECLARES BY CONSENT THAT:

1. In recommending to the first respondent that the applicants not be recognised as persons to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent misapplied the law in relation to complementary protection obligations.

THE COURT ORDERS BY CONSENT THAT:

1. The applications be otherwise dismissed.

2. The first respondent pay the applicant’s costs fixed in the sum of $6,652.00.

Note: The first respondent accepts that the second respondent misapplied the law with respect to the consideration of whether the applicants satisfied section 36(2)(aa) of the Migration Act 1958 (Cth), because the second respondent in paragraphs [117] and [118] of the reasons impermissibly suggested that the applicants must show that harm would be a necessary in the sense of being inevitable consequence of the applicant’s removal to Vietnam.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 263 of 2014

AZAFD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GRAHAM BARTER, INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The Court is satisfied that it is appropriate to make the declaration by consent in light of the revised note that specifies the jurisdictional error that is conceded by the first responded and where it is open to find that the Independent Protection Assessment Reviewer made the error alleged.

2. The first proposed note did not disclose the nature of the alleged error. The Court is satisfied that the nature of the alleged error that was open is properly specified in the revised note to the above orders. 

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 May 2015