CAK16 v Minister for Immigration - [2018] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAK16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2670

Catchwords:
MIGRATION – Application for review of AAT decision affirming decision of the delegate of the First Respondent – allegation by applicant that his application for a protection visa contained erroneous information caused by misinterpretation – adverse credibility findings made by AAT based upon inconsistencies between evidence given by applicant before tribunal and earlier application for protection visa – where evidence of applicant, as interpreted before AAT, given partly in first person but largely in third person – where impossible to establish whether interpreter put his own gloss upon the applicant’s answers – where lack of confidence that applicant had been afforded a fair hearing – where decision of AAT quashed.

Cases cited:

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Applicant:

CAK16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER ROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 682 of 2016

Judgment of:

Judge Egan

Hearing date:

7 August 2018

31 August 2018

Date of Last Submission:

31 August 2018

Delivered at:

Brisbane

Delivered on:

19 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr S Hegedus

Solicitors for the Applicant:

HopgoodGanim Lawyers

Counsel for the Respondents:

Mr J Byrnes

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

That the decision of the Administrative Appeals Tribunal made on 28 June 2016 be quashed.
That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the applicant’s application for review of the second respondent's decision according to law, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
That for the purpose of the Administrative Appeals Tribunal determining the Applicants’ application, that it be constituted by a different member than that who handed down the decision on 28 June 2016.
That the first respondent pay the applicant’s costs of and incidental to the proceedings to be taxed pursuant to Part 21 of the Federal Circuit Court Rules 2001 (Cth) unless agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 682 of 2016

CAK16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on 20 March 2013 as an irregular maritime arrival. He is almost 33 years of age.
On 6 June 2013, the applicant applied for a protection (Class XA) visa.
The delegate to the Minister refused the application for a visa by a decision dated 5 September 2014.
On 10 October 2014, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.
The first hearing before the Tribunal took place on 21 October 2015. The applicant was assisted during the course of the hearing by a NAATI certified translator named Mr Mukherjee. During such hearing, an issue arose as to whether or not the applicant accepted the accuracy of some of the information which had been recorded in his…

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 2670
Decision Date: 19 September 2018

CaseChat Overview and Summary

The applicant, CAK16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant information or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Egan found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the risk of future persecution. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all relevant evidence. The delegate's failure to adequately engage with the specific details of the applicant's experiences and the country information provided constituted a jurisdictional error.

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

Orders