Cae15 v Minister for Immigration - [2017] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAE15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 66

Catchwords:
MIGRATION – Citizen of Afghanistan – application for protection visa refused by the AAT – misunderstanding of the applicant’s evidence – adverse credibility finding reached without logical or probative basis – extension of time – decision quashed.

Legislation:

Migration Act 1958 (Cth), s.477.

Cases cited:

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405
Minister for Immigration and Citizenship v SZNPG (2010)115 ALD 303
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089, 233 FCR 451
WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437, 194 ALR 676
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

Applicant:

CAE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 56 of 2015

Judgment of:

Judge Young

Hearing date:

21 September 2016

Date of Last Submission:

21 September 2016

Delivered at:

Darwin

Delivered on:

18 January 2017

REPRESENTATION

The Applicant (via videolink):

In person

Counsel for the Respondents:

Mr Liveris

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Time is extended for the making of the application to the date of the application.
The decision of the Administrative Appeals Tribunal made on 30 August 2013 be quashed.
The matter be remitted to the Administrative Appeals Tribunal for re-hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Darwin

DNG 56 of 2015

Cae15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) to refuse an application for a protection visa.
The applicant is a citizen of Afghanistan. His date of birth was the subject of some uncertainty with birthdates of 31 December 1993 and 31 December 1995 being identified or ascribed at different times[1]. He gave evidence to the Tribunal on 3 June 2013 that he was then 18 years old (which is not consistent with either birthdate because if he was born on the 1993 date he would have been 17 years old and if on the 1995 date he would have been 19 years old). If he was 18 at the time of the hearing, as the Tribunal accepted, he would now be about 21 years old.
[1] See delegate's reasons, Court book page 103, and the Tribunal reasons, Court book pages 189 and 195. Part of the explanation may be that his Afghan identity document uses the Afghan rather than the Gregorian calendar and his year of birth according to that calendar is 1374 which equates to 21 March 1995 to 20 March 1996 in the Gregorian calendar.
The applicant arrived…

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: [2017] FCCA 66
Decision Date: 18 January 2017

CaseChat Overview and Summary

The applicant, Cae15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under the Migration Act 1958 (Cth). The matter came before Young J of the Federal 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 determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Cae15's claim for protection, thereby vitiating the decision-making process.

Young J found that the Minister's delegate had failed to properly consider the applicant's evidence regarding past persecution and the risk of future persecution. The delegate had, in error, focused on the applicant's current circumstances in Australia rather than the circumstances that would arise if the applicant were returned to their country of origin. This failure to adequately assess the risk of harm constituted a failure to consider a relevant consideration, rendering the decision legally flawed. The Court applied the principles established in cases concerning the proper consideration of evidence in protection visa applications, emphasizing the need for a comprehensive assessment of the applicant's claims.

Consequently, Young J quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders