CDF15 v Minister for Immigration

[2017] FCCA 937

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDF15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 937

Catchwords:
MIGRATION – Show cause procedure – applicant’s case being arguable – not appropriate for it to be dealt with under the show cause procedure of rule 44.12 of the Federal Circuit Court Rules 2001 – set down for final hearing before a different judge.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth)

Cases cited:

AMF15 v Minister for Immigration and Border Protection and Anor [2016] FCAFC 68
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

MZARD v Minister for Immigration and Border Protection (2017) FCCA 343

Spencer v Commonwealth of Australia (2010) 241 CLR 118

SZLGP v The Minister (2009) 181 FCR 113
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: CDF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2335 of 2015

Judgment of: Judge Wilson

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Melbourne

Delivered on: 2 May 2017

REPRESENTATION

Applicant in person

Solicitors for the
First Respondent: DLA Piper Australia

ORDERS

1. Pursuant to r.44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) the proceeding is adjourned for hearing on a date and at a time to be fixed before another Judge of this Court.

2. There is no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2335 of 2015

CDF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. On 30 March 2016 a registrar of this Court ordered by consent that this case was to proceed under the show cause procedure set out in

   
   

   rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Under the show cause procedure, if the Court is of the view that no arguable case is shown by the applicant, the court is empowered, among other things, to dismiss the whole proceedings. Cases in the High Court such as Spencer v Commonwealth[1] and in the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection[2] caution a court by stating that the power to summarily dismiss a proceeding should not be exercised lightly. I have approached my task in this case with that instruction in mind.

   [1] (2010) 241 CLR 118.

   [2] [2016] FCAFC 685.

2. [3] [2016] FCAFC 146.

   In my view, this case is arguable. The Tribunal gave no consideration to case law on witness credibility assessment when concluding that the applicant was not a credible witness. The Full Court in

   
   CQG15 v Minister for Immigration and Border Protection[3]

   (“CQG15”) extensively reviewed the law concerning adverse credibility findings. While true, the decision of the Administrative Appeals Tribunal

   
   

   (“the Tribunal”) in this case dated 23 September 2015 pre-dated the 2016 determination of the Full Court in CQG15, nevertheless earlier authorities than that case from the Federal Court have held that adverse credit findings do not shield the Tribunal from scrutinising its decision-making process. Those cases include Minister for Immigration and Citizenship v SZRKT,[4] SZLGP v Minister for Immigration and Citizenship[5] and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[6]

   [4] (2013) 212 FCR 99.

   [5] (2009) 181 FCR 113.

   [6] (2013) FCAFC 80.

3. The mere fact that the Tribunal takes an adverse view of credit as against the applicant, that in and of itself does not render the Tribunal decision impervious from judicial review. I examined the key authorities and their application in MZARD v Minister for Immigration and Border Protection.[7]

   [7] [2017] FCCA 343.

4. In this case, the applicant claimed the Tribunal failed to assess his claim for a protection visa according to applicable law. That was his first ground of review. His second ground had all the hallmarks of a merits review, that being an impermissible basis of review in a judicial review application. So far as the first ground of review was concerned, it struck me that it was arguable that the Tribunal failed to assess credit according to applicable law. None of the cases above were considered. The credit finding made in paragraph 58[8] of the Tribunal’s reasons was a fleeting assessment of credit, to say the least. Credit assessment since CQG15 involves a vastly more sophisticated process.

   [8] Court Book filed 11 March 2016 at p.100.

5. In my view, it was arguable that the Tribunal did not discharge its statutory obligations in the manner required by law. Beyond saying that the point is arguable, it is best that I say no more on this issue now.

6. I order this case to be placed in the list of cases awaiting final hearing. 

7. In view of my conclusions above, preliminary though they may be, this case should be heard by another judge of this Court.

8. In view of the fact that both parties agreed that this case was appropriately dealt with under the show cause procedure and in view of my order for this case to be heard at a full hearing, it is not appropriate for me to make any orders as to costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 10 May 2017