CAC19 v Minister for Home Affairs - [2019] FCCA 3336

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAC19 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3336

Catchwords:
MIGRATION – Application for judicial review of AAT decision – whether Tribunal erred in failing to deal with relevant country information – whether Tribunal erred in its construction of SZRSN v Minister – whether SZRSN wrongly decided – criticism not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
SZRSN v Minister for Immigration [2013] FCA 751
MZAEN v Minister for Immigration and Border Protection [2016] FCCA 620

Applicant:

CAC19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1534 of 2019

Judgment of:

Judge Burchardt

Hearing date:

3 October 2019

Date of Last Submission:

3 October 2019

Delivered at:

Melbourne

Delivered on:

22 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Albert

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Tran

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1534 of 2019

CAC19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

By an amended application, dated 20 September 2019, the applicant seeks judicial review of a decision of the second respondent. The Tribunal, by a decision dated 15 February 2017, affirmed a decision of a delegate of the first respondent not to grant the applicant and his wife protection visas. The wife’s application was wholly ancillary to that of the applicant in this case and need not be further considered.
The applicant has pressed grounds 1 and 2 in the application. I note that ground 3 was made only formally and will not require further consideration. I further note that a potential conflict in Full Court and the Federal Court authority, referred to in Judge Riethmuller’s earlier interlocutory proceeding, was not pressed before me. Finally, I should note that the applicant’s application for an extension of time was not opposed and, accordingly, was granted.

Ground 1

The Tribunal erred in its statutory task in that it did not ‘deal with’ country information relating to Decree 33 of Nigeria, by which Nigerian returnees who have been convicted of drug offences outside Nigeria are liable to imprisonment for bringing Nigeria into disrepute.

The central point of difference between the parties in relation to ground 1 is what is to be made of the Tribunal’s approach to country information. Counsel for the applicant laid stress upon the fact that the Tribunal had failed, in any way, to engage with country information said to be pertinent. In this regard, counsel referred to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, where the Full Court said, at [49]:

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 3336
Decision Date: 22 November 2019

CaseChat Overview and Summary

The applicant, CAC19, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the visa application, finding that the applicant's claims were not substantiated and that they did not meet the criteria for a protection visa. The matter came before Judge Burchardt in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered all the evidence before them, including the applicant's claims of persecution, and whether the delegate had applied the correct legal principles in assessing those claims. Specifically, the Court had to consider whether the delegate had adequately assessed the applicant's membership in a particular social group and whether the claimed harm was real and substantial.

Judge Burchardt found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding their membership in a particular social group. The delegate's assessment was found to be superficial and did not engage with the specific details provided by the applicant. The Court reiterated the principle that a delegate must genuinely consider all relevant evidence and provide reasons that address the substance of the applicant's claims. The failure to do so meant the decision was vitiated by jurisdictional error.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders