Azk15 v Minister for Immigration - [2015] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZK15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2303

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection visa – whether the Tribunal correctly identified the applicant’s receiving country – whether Tribunal erred in finding applicant not a witness of credit – whether Tribunal failed to address an integer of the applicant’s claims – findings open to the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(3), 425, 427, 476, 499

Applicant:

AZK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1567 of 2015

Judgment of:

Judge Street

Hearing date:

25 August 2015

Date of Last Submission:

25 August 2015

Delivered at:

Sydney

Delivered on:

25 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Respondents:

Mr A Markus
Australian Government Solicitors

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1567 of 2015

AZK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 4 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant filed an amended application which, omitting the particulars, identified the following four grounds.
Ground 1: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question.
1. The second respondent erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.
…
Ground 2: Jurisdictional Error
20. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant's claims, or an integer of his claims.
21. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
22. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
…
Ground 3: No Evidence
30. There was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when making the decision.
…
Ground 4: Relevant Considerations
48. The Second Respondent failed to take into account a relevant consideration in the exercise…

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: [2015] FCCA 2303
Decision Date: 25 August 2015

CaseChat Overview and Summary

The applicant, Azk15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse Azk15's application for a protection visa. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Azk15's claims for protection, had failed to properly consider or give sufficient weight to certain aspects of Azk15's evidence and submissions.

Judge Street found that the delegate had failed to adequately consider the evidence relating to Azk15's fear of persecution, particularly in relation to the specific circumstances and nature of the threats faced. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant material before them. The failure to do so, in this instance, amounted to a jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders