CDV17 v Minister for Immigration - [2018] FCCA 3489

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3489

Catchwords:
MIGRATION – Protection visa – claim to fear harm from loan sharks – credibility based findings adverse to applicant – adjournment application refused – application contained generalised grounds of review – show cause hearing – applicable principles – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 65, 474, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

Morad v El-Ashey [2017] FCA 1136
MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593
Nichol v Discovery Africa Limited [2016] FCAFC 182
Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v The Commonwealth (2010) 241 CLR 118
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122
IPR190

Applicant:

CDV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1032 of 2017

Judgment of:

Judge A Kelly

Hearing date:

27 November 2018

Date of Last Submission:

27 November 2018

Delivered at:

Melbourne

Delivered on:

30 November 2018

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondents:

Ms Buhary

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application filed on 19 May 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1032 of 2017

CDV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 19 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

The applicant, a Malaysian national aged 30 years, first arrived in Australia on 29 July 2015.
On 12 October 2015, the applicant applied for a Protection (subclass 866) visa. By her application, the applicant claimed she became involved with loan sharks since she was not working after her company was shut down in September 2015. She claimed she did not have any financial resources to pay the loan sharks and that they had come to her office and house and threatened her.
On 27 May 2016, a delegate of the Minister refused to grant the applicant a Protection visa. The delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa. The delegate recorded the applicant’s claims at [4] and found at [22] that the applicant provided minimal detail and vague information in her application. The delegate further noted the applicant’s claim that her company was shut down in September…

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 3489
Decision Date: 30 November 2018

CaseChat Overview and Summary

The applicant, CDV17, sought judicial review of a decision by the Minister for Immigration to refuse their application for a protection visa. The applicant's claim for protection was based on an alleged fear of harm from loan sharks. The primary court was the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the primary decision-maker had made adverse credibility findings against the applicant that were not open to them, whether the applicant's application for an adjournment of the hearing was wrongly refused, and whether the grounds of review raised by the applicant were sufficiently particularised to be considered. The court also considered the principles applicable to a show cause hearing in the context of migration matters.

Judge A Kelly found that the adverse credibility findings made by the primary decision-maker were open to them based on the evidence before them. The court determined that the applicant's application for an adjournment was not wrongly refused, as the grounds for the adjournment were not sufficiently established. Furthermore, the court held that the grounds of review contained in the application were too generalised and did not adequately particularise the alleged errors of law. Consequently, the application for judicial review was dismissed.

Orders