CDN16 v Minister for Immigration - [2018] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDN16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1947

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – temporary protection visa – Migration Review Tribunal – Independent Protection Assessor.

Legislation:
Migration Act 1958, ss.473BA, 473DB, 473GA, 473GB
Immigrants and Emigrants Act 1949 (Sri Lanka)

First Applicant:

CDN16

Second Applicant

CDS16

Third Applicant

CDT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

MLG 1661 of 2016

Judgment of:

Judge Mercuri

Hearing date:

20 March 2018

Date of last submission:

20 March 2018

Delivered at:

Melbourne

Delivered on:

20 July 2018

REPRESENTATION

Counsel for the Applicants:

Ms A. Burt

Solicitors for the Applicant:

Ambi Associates

Counsel for Respondents:

Mr N. Wood

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 4 August 2016 and amended application filed on 21 February 2018 be dismissed.
The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1661 of 2016

CDN16

First Applicant

CDS16

Second Applicant

CDT16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (the “IAA”) on 25 July 2016. In that decision, the IAA affirmed a decision of a delegate (the “delegate”) of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicants a temporary protection visa.[1]
[1] The initial application was made by the applicant wife, her husband and their child.
In essence the applicants argue that the decision of the IAA to refuse to grant them protection visas is affected by jurisdictional error.
The three applicants consist of a husband, wife and their child. The applicants claim that the IAA…

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 1947
Decision Date: 20 July 2018

CaseChat Overview and Summary

CDN16 (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 matter came before Judge Mercuri in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant's claimed fear of persecution was well-founded, specifically concerning their membership in a particular social group. This required the Court to assess the evidence presented by the applicant and determine if it established a real chance of suffering harm amounting to persecution upon return to their country of origin, as defined by the Migration Act 1958 (Cth) and relevant international conventions.

Judge Mercuri considered the applicant's evidence regarding the nature of the group, its characteristics, and the alleged persecution faced by its members. The Court applied the established legal principles for assessing claims of persecution, including the objective/subjective test and the assessment of whether a real chance of harm existed. The Court found that the applicant had not discharged the onus of proof to establish that they would face persecution as a member of a particular social group, concluding that the Minister's decision to refuse the visa was therefore not vitiated by error.

Orders