CCK16 v Minister for Immigration - [2018] FCCA 1724

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCK16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1724

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A.

Cases cited:

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3

Applicant:

CCK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1640 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

7 February 2018

Date of Last Submission:

7 February 2018

Delivered at:

Melbourne

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Isobel

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr L Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1640 of 2016

CCK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 18 July 2012. He is a citizen of Iran.
The applicant lodged an application for a protection visa on 7 November 2012. A delegate of the Minister refused the application on 27 August 2013. The decision of the delegate was affirmed by the Refugee Review Tribunal (“RTT”) (as it was then) on 3 February 2015. The applicant then successfully sought judicial review of the RRT’s decision and the matter was remitted to the Administrative Appeals Tribunal (“the Tribunal”) by consent on 4 September 2015. The Tribunal conducted a hearing on 21 June 2016, and on 8 July 2016 again affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant seeks judicial review of the decision of the Tribunal.

The Applicant’s Claims

The applicant is a 33 year old Iranian. The applicant travelled to Australia with his wife by boat arriving as unauthorised maritime arrivals. The applicant’s brother and his brother’s wife were on the same boat. Remarkably, as the Tribunal recounts “the applicant has maintained for the last four years that they did not plan any part of the journey together and he was not aware of his brother's departure from Iran until they bumped into each other at Christmas Island as they got off the

boat”: see [31] of the Tribunal’s decision.
The applicant’s claims are identified in the reasons at [33] and following, which can be summarised as:
a)“…that he feared harm from a man who was pursuing - 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: [2018] FCCA 1724
Decision Date: 29 June 2018

CaseChat Overview and Summary

CCK16 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) 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 ethnicity and political opinions. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller of 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. Specifically, the applicant argued that the delegate failed to properly consider and assess all relevant aspects of their protection claims, including their ethnicity and political opinions, and that the delegate's adverse credibility findings were not reasonably open on the evidence. The applicant contended that this failure amounted to a jurisdictional error, rendering the decision invalid.

Judge Riethmuller considered the evidence presented by the applicant and the delegate's reasons for decision. The Court applied the principles of administrative law, including the requirement for a decision-maker to genuinely consider all relevant material and to provide reasons that are not illogical or irrational. The Court found that the delegate had adequately considered the applicant's claims regarding ethnicity and political opinions, and that the adverse credibility findings were open to the delegate on the evidence before them. The Court concluded that there was no jurisdictional error in the delegate's decision-making process.

The application for judicial review was dismissed.

Orders