CDR15 v Minister for Immigration - [2015] FCCA 2824

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDR15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2824

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – interlocutory injunctive relief – whether removal of the applicant was not reasonably practicable under s.198 - no prima facie case or serious question to be tried identified by the applicant's application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.198, 198AD, 417, 476

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465

Applicant:

CDR15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2854 of 2015

Judgment of:

Judge Street

Hearing date:

20 October 2015

Date of Last Submission:

20 October 2015

Delivered at:

Sydney

Delivered on:

20 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr Markus
Australia Government Solicitors

ORDERS

The interlocutory application for injunctive relief is dismissed

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2854 of 2015

CDR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for injunctive relief in respect of a notification provided on 12 October 2015 for the applicant to be removed from Australia.
The applicant was granted a visitor visa on 21 November 2001, which was valid until 27 December 2001. The applicant arrived in Australia on 27 November 2001. On 24 December 2001, just before the expiry of the visitor visa, the applicant applied for a protection visa. On 30 May 2002, the protection visa application was refused, and on 24 June 2002 the applicant appealed to the Refugee Review Tribunal (RRT).
On 8 July 2003, the RRT affirmed the decision of the delegate, refusing a protection visa. On 30 July 2003, proceedings for review were commenced in the Federal Court of Australia. On 18 August 2003 a bridging visa was granted, valid until 12 April 2005.
On 8 December 2004, the Federal Court of Australia proceedings were determined adversely to the applicant, and on 21 December 2004, the applicant commenced proceedings in the Full Court of the Federal Court of Australia which were unsuccessful, and those proceedings brought to an end on 15 March 2005.
On 12 April 2005, the applicant's bridging visa ceased and the applicant became an unlawful citizen. On 1 July 2005, after the applicant was located, the applicant was granted a Bridging visa E class until 5 July 2005. That visa expired on 5 July 2005 and the applicant thereafter became an unlawful citizen and remained in Australia as an unlawful citizen until he was located on 11 March 2015, and has been in detention since that date.
The applicant lodged a Ministerial intervention request on 9 March 2015 under s.417 that was decided not to be considered on 9 September 2015. On 13 October…

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: [2015] FCCA 2824
Decision Date: 20 October 2015

CaseChat Overview and Summary

CDR15, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection based on a fear of persecution in their country of origin. The matter came before Judge Street of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly assessed the applicant's claims for protection, specifically in relation to the risk of persecution due to their imputed political opinion. This involved determining whether the delegate had adequately considered all relevant information and applied the correct legal standards in assessing the credibility of the applicant's claims and the objective likelihood of harm.

Judge Street's reasoning focused on the principles of administrative decision-making and the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Court examined whether the delegate's decision was affected by an error of law, including whether the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations. The Court applied the established legal principles regarding the assessment of protection claims, including the need for a holistic assessment of the evidence and the application of the well-founded fear test.

The Court found that the delegate had made an error of law in their assessment of the applicant's claims. Consequently, Judge Street set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders