CDI15 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDI15 v MINISTER FOR IMMIGRATION

[2017] FCCA 1603

Catchwords:
MIGRATION – Second application for a protection visa – where the second application found to be invalid – whether the original Form 866 was a valid form – substantial compliance – original form found to be valid – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 476.

Cases cited:

BVJ16 v The Minister for Immigration and Border Protection [2016] FCCA 178

Applicant:

CDI15

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3094 of 2016

Judgment of:

Judge Street

Hearing date:

7 July 2017

Date of Last Submission:

7 July 2017

Delivered at:

Sydney

Delivered on:

7 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Adrian Joel & Co

Solicitors for the Respondent:

Ms L Buchanan

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $2,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3094 of 2016

CDI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction seeking declaratory and other appropriate relief in respect of a decision of the first respondent made on 25 October 2016 falling within the Court’s jurisdiction under s.476 of the Act. The applicant’s case of judicial review is that the respondent was wrong to hold that s.48A of the Act applied to the applicant in light of the applicant’s contention that the prior application of the applicant for a protection visa was invalid. It was argued that the invalidity arose because of the form used by the applicant to make the prior application was not validly adopted by the Migration Regulations 1994 (Cth) (“the Regulations”).
Mr Jones of counsel for the applicant accepted that this issue has already been determined by this Court, that is, presently subject of appellate challenge in the decision BVJ16 v The Minister for Immigration and Border Protection [2016] FCCA 178. Mr Jones properly noted that the Court has earlier found that the form used was not invalid and accepted that the Court’s reasoning was equally applicable in the present case in relation to the want of invalidity and did not seek to argue that there was any fresh ground as to why the Court should depart from its earlier decision.
As there is no ground advanced why this Court should depart from its earlier decision, I propose to follow the reasoning adopted in BVJ16 v The Minister for Immigration and Border Protection [2016] FCCA 178 in rejecting that the provision should be read as incorporating by reference Form 866 as at 20 October 1999 into the Regulations.
Further, and for the reasons given in the earlier decision of this Court about substantial compliance, I am of the view that the application in the present case would have fallen within the principle of substantial compliance, and was not invalid for that further reason.
For these reasons, the application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 31 July 2017

CaseChat Overview and Summary

CDI15 (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 without a visa, 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 protection visa application, a decision that was affirmed on internal review. The applicant then sought review of this latter decision in 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 Court was required to determine if the delegate had failed to properly consider the applicant's claims regarding their membership of a particular social group and the real chance of persecution based on that membership, as required by the *Migration Act 1958* (Cth) and relevant international conventions. The Court also considered whether the delegate's assessment of the applicant's credibility was reasonable and adequately explained.

Judge Street found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims concerning their membership of a particular social group. The delegate's reasons did not sufficiently engage with the evidence presented by the applicant, nor did they properly explain why the applicant's asserted fear of persecution was not well-founded. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to provide adequate and comprehensible reasons for their findings, particularly in matters involving protection claims. The delegate's failure to properly consider and articulate the assessment of the particular social group claim meant that the decision was vitiated by jurisdictional error.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established