AZW16 v Minister for Immigration - [2018] FCCA 2229

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZW16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2229

Catchwords:

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether there was before the Tribunal a distinct claim based on actual political opinion in addition to a claim based on imputed political opinion – whether if there were such claim the applicant by his or his representative’s conduct rendered it reasonable for the Tribunal to assume there was not before it a claim based on actual political opinion – whether the Tribunal misapplied the “real chance test” when assessing whether the applicant had a well-founded fear of being persecuted – whether by not having disclosed to the applicant a s.438 certificate not alleged to have been invalidly issued the Tribunal made a jurisdictional error – whether the Tribunal did not accept or doubted a claim made by the applicant and in those circumstances failed to give to the applicant notice this claim may not be accepted by the Tribunal with the consequence that the Tribunal failed to accord the applicant procedural fairness – jurisdictional error found because there was before the Tribunal a claim based on actual political opinion which the Tribunal did not consider.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 414, 418, 424, 425, 438

Applicant:

AZW16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1057 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

8 June 2017

Date of Last Submission:

8 June 2017

Delivered at:

Sydney

Delivered on:

16 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr D Hughes

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The decision of the second respondent made on 4 April 2016 affirming the decision of the delegate of the first respondent made on 31 March 2014 not to grant the applicant a Protection (Class XA) visa is quashed.
The second respondent determine according to law the applicant’s application for review of the decision of the delegate of the first respondent made on 31 March 2014 not to grant the applicant a Protection (Class XA) visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1057 of 2016

AZW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is a citizen of Pakistan, seeks judicial review of a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant relies on the four grounds of application contained in the amended application. Before I consider those grounds, it will be necessary to set out the claims for protection the applicant made before the Tribunal, and the…

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: [2018] FCCA 2229
Decision Date: 16 August 2018

CaseChat Overview and Summary

The applicant, AZW16, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed the Minister for Immigration's refusal to grant a protection visa. The central dispute concerned whether the Tribunal had adequately considered all claims made by the applicant, particularly a claim based on an actual political opinion, as distinct from a claim based on an imputed political opinion. The matter was heard by Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included whether a distinct claim based on actual political opinion was before the Tribunal, and if so, whether the applicant or their representative's conduct led the Tribunal to reasonably assume such a claim was not being advanced. Further issues involved whether the Tribunal misapplied the "real chance test" in assessing the applicant's fear of persecution, whether the non-disclosure of a section 438 certificate constituted a jurisdictional error, and whether the Tribunal's failure to notify the applicant of potential doubt or non-acceptance of a claim breached procedural fairness.

Judge Manousaridis found a jurisdictional error had occurred because there was indeed a claim based on actual political opinion before the Tribunal, which the Tribunal had failed to consider. The reasoning focused on the Tribunal's obligation to address all claims properly before it. The court determined that the applicant's conduct did not render it reasonable for the Tribunal to assume the claim based on actual political opinion was not being pursued. The court did not make findings on the other issues raised, as the jurisdictional error was determinative.

Orders