CCC15 v Minister for Immigration - [2016] FCCA 2335

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCC15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2335

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by not inviting the applicant to comment upon information – whether the Tribunal’s decision was affected by an apprehension of bias – whether the Tribunal adversely prejudged the matter – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Charara v Commissioner of Taxation [2016] FCA 451
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28SZBYR v Minister for Immigration& Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 [18]

SZNVM v Minister for Immigration & Citizenship [2010] FCA 261
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123

Applicant:

CCC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2780 of 2015

Judgment of:

Judge Smith

Hearing date:

10 August 2016

Date of Last Submission:

31 August 2016

Delivered at:

Sydney

Delivered on:

15 September 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr J Pinder, Minter Ellison

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2780 of 2015

CCC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Lebanon who arrived in Australia as a student on 23 February 2008. On 18 June 2013 he applied for a protection visa. That application was based upon the applicant’s claim that he was bisexual and that if he were to live openly as such in Lebanon, he would be harmed by his family or people in the community, might be arrested by the Police and possibly beaten or raped.
On 18 July 2014, a delegate of the Minister made a decision not to grant the applicant a visa and the applicant applied to the Refugee Review Tribunal for review of that decision. On 1 July 2015 the functions of the Refugee Review Tribunal were taken over by the Administrative Appeals Tribunal and that Tribunal continued the review of the delegate’s decision.
The applicant attended a hearing conducted by the Tribunal on 4 August 2015. The Tribunal made its decision on 21 September 2015 affirming the decision of the delegate. The applicant seeks judicial review of that decision. He argues that the Tribunal failed to consider his claims and…

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: [2016] FCCA 2335
Decision Date: 15 September 2016

CaseChat Overview and Summary

The applicant, CCC15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the applicant's claims of persecution in their country of origin. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had reasonably considered and assessed the applicant's claims for protection, particularly in light of the evidence presented. This involved determining if the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and whether the assessment of the applicant's credibility and the country information was adequate.

Judge Smith found that the delegate had failed to adequately assess the applicant's claims. The Court reasoned that the delegate had not properly engaged with the specific details of the applicant's account of persecution, nor had they sufficiently considered the country information in relation to those specific claims. The delegate's assessment was found to be superficial and lacking in the detailed analysis required by law, leading to an unreasonable conclusion.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders