CCR16 v Minister for Immigration - [2017] FCCA 2790

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCR16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2790

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Protection visa under s.109 of the Migration Act 1958 (Cth) for non-compliance with s.101(b) – applicant had claimed in his Protection visa application to be stateless but nearly three years subsequent to the grant of a Protection visa had obtained an Iranian passport from the Iranian Embassy in Canberra – Administrative Appeals Tribunal found that the Applicant had not complied with s.101(b) of the Migration Act 1958 (Cth) in incorrectly claiming to be stateless and concluded that the Protection visa should be cancelled because the Applicant’s non-compliance was deliberate and he had continued to maintain and confirm the incorrect information originally given – no jurisdictional error committed by Administrative Appeals Tribunal in making its factual findings – Administrative Appeals Tribunal not bound to follow other Administrative Appeals Tribunal decisions because not bound by the doctrines of precedent or issue estoppel – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105, 107, 109, 414, 415

Migration Regulations 1994 (Cth)

Cases cited:

Applicant:

CCR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2056 of 2016

Judgment of:

Judge Dowdy

Hearing date:

21 March 2017

Delivered at:

Sydney

Delivered on:

22 November 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr G Johnson of Counsel

Solicitors for the Respondents:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 1 August 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2056 of 2016

CCR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male aged 41 years, having been born on 23 September 1976. He claims to be stateless but has had connection with Iraq, where he was born, and Iran, where he has spent most of his life.
By Application filed in this Court on 1 August 2016 he seeks to quash and have redetermined a decision…

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 2790
Decision Date: 22 November 2017

CaseChat Overview and Summary

CCR16 (the applicant) sought judicial review of a decision 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 membership of a particular social group. The Minister's delegate had refused the visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa. The applicant subsequently sought review of this decision in the Federal Circuit Court.

The primary legal issue before Dowdy J was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the court was asked to consider whether the delegate had failed to properly assess the applicant's claims of persecution, particularly in relation to the definition of a "particular social group" under the Migration Act 1958 (Cth) and the Refugee Convention. The applicant argued that the delegate had applied an incorrect legal test when assessing their claims and had failed to give adequate reasons for their adverse credibility findings.

Dowdy J found that the delegate had indeed made a jurisdictional error. The court held that the delegate had misinterpreted the scope of "membership of a particular social group" by requiring the group to possess an "inherent characteristic" that was immutable or fundamental to identity, rather than considering whether the group was defined by a characteristic that was reasonably discernible and shared by its members. Furthermore, the delegate's reasons for rejecting the applicant's claims were found to be inadequate, failing to engage with the substance of the evidence presented and thus not providing a proper basis for the adverse credibility findings.

Consequently, Dowdy J set aside the delegate's decision and remitted the application for a protection visa to the respondent for redetermination according to law.

Orders