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C7A/2017 v Minister for Immigration

C7A/2017 v Minister for Immigration

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Case Copied 31 May 2019 71 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

C7A/2017 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1440

Catchwords:
MIGRATION – central issues concern the Tribunal’s strongly adverse findings regarding the Applicant Mother’s credibility – these included her claim for refugee status on the basis of being a Rohingya – the Applicant said that she lived with her Rohingyan Uncle since she was 6 years old but she did not speak Rohingyan at all – claims of unreasonableness not made out – that the Tribunal did not relevantly consider all relevant integers of the claim – Application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), s.424AA.

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2017) 250 FCR 109

BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109

CQG v Minister for Immigration and Border Protection (2016) 253 FCR 496

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

First Applicant:

C7A/2017

Second Applicant:

C7B/2017

Third Applicant:

C7C/2017

First Respondent:

Minister FOR Immigration & Border Protection

Second Respondent:

Administrative Appeals Tribunal

File Number:

CAG 77 of 2017

Judgment of:

Judge Neville

Hearing date:

12 June 2018

Date of Last Submission:

12 June 2018

Delivered at:

Canberra

Delivered on:

31 May 2019

REPRESENTATION

Counsel for the Applicants:

Mr Lawrence

Solicitors for the Applicants:

Hearn Legal

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Applicant’s Application filed on 18^th May 2017 be dismissed.
(2) The Applicant pay the Respondent’s costs in the sum of $7,467 as per Schedule 1 of the Federal Circuit Court Rules 2001.

(1) FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Canberra

CAG 77 of 2017

C7A/2017

First Applicant

C7b/2017

Second Applicant

C7c/2017

Third Applicant

And

Minister FOR Immigration & Border Protection

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns a challenge by a Mother and her two sons (all of whom claimed to be Rohingyan) to a decision by the Delegate (made on 8^th June 2015) to deny her a Protection Visa, which decision was affirmed by the Refugee Review Tribunal (“the Tribunal”) on 13^th April 2017.
2. For the reasons that follow, I do not find that there was any relevant error by the Tribunal in its decision. Accordingly, the Amended Application to Review, filed 30^th May 2018, must be dismissed with costs payable in the amount as prescribed in this Court’s Rules.

The Tribunal’s Decision

3. The Delegate of the First Respondent Minister determined not to grant the Applicants a Temporary Protection (Class XD) visa. On 13^th April 2017, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the Delegate’s decision for the following reasons.
4. Paragraphs 6 – 8 set out the Applicant’s claims that she was born in Malaysia (and was stateless) to a Burmese Father who was also stateless, and who passed away while her…

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: [2019] FCCA 1440
Decision Date: 31 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of C7A/2017 and the Minister for Immigration. The applicant, C7A/2017, sought review of a decision made by the Minister to refuse to grant a protection visa. The core of the dispute concerned whether the applicant had established a well-founded fear of persecution for a Convention reason.

The Tribunal was required to determine whether the applicant's claimed fear of persecution was objectively reasonable, based on the evidence presented. Specifically, the Tribunal had to assess the credibility of the applicant's account of events and whether the alleged persecution, if it occurred, was linked to one of the five Convention grounds: race, religion, nationality, membership of a particular social group, or political opinion.

In reaching its decision, the Tribunal applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*. The Tribunal carefully considered the applicant's personal circumstances, the general country information relating to their country of origin, and any corroborating evidence. The assessment involved a holistic evaluation of the evidence to determine if there was a real chance of persecution, rather than a mere possibility. The Tribunal found that the applicant had not established a well-founded fear of persecution for a Convention reason.

Orders