Azafe v Minister for Immigration

[2015] FCCA 1478

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1478

Catchwords:
MIGRATION – Graham Barter, Independent Protection Assessment Reviewer – Protection (class XA) visa – consent orders – error of law.

Applicant: AZAFE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: GRAHAM BARTER, INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: ADG 264 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 Respondents: Ms A. Bain

Solicitors for the Respondents: 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 264 of 2014

AZAFE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GRAHAM BARTER, INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

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 respondent 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:  3 June 2015

CORRECTIONS

1. Catchwords changed to MIGRATION – Graham Barter, Independent Protection Assessment Reviewer – Protection (class XA) visa – consent orders – error of law.

2. Legislation deleted in the front cover page.

3. The spelling of “first respondent” corrected in paragraph 1 of the Reasons for Judgment.