CDY15 v Minister for Immigration - [2017] FCCA 1800

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDY15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1800

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicants claim denial of procedural fairness – where there was delay between the Tribunal hearing and the Tribunal’s decision – no material effect on the Tribunal’s capacity to assess the Applicants’ evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA

Cases cited:

CVA15 v Minister for Immigration and Border Protection [2017] FCCA 132

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Prasad v Minister for Immigration [1985] FCA 47
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

First Applicant:

Second Applicant:

CDY15

CDZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2354 of 2015

Judgment of:

Judge Hartnett

Hearing date:

24 April 2017

Delivered at:

Melbourne

Delivered on:

2 August 2017

REPRESENTATION

Counsel for the Applicants:

Mr Maloney

Solicitors for the Applicants:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Petrie

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2354 of 2015

CDY15

First Applicant

CDZ15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicants seek judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 16 September 2015. By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent who refused to grant the Applicants Protection visas (‘the visas’).
The grounds of application are as follows:-
“1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error in that the Tribunal failed to deal with the Applicant's claims as they arose from the Tribunal's own findings or conclusions.
Particulars
a. The Tribunal accepted that the first-named applicant ('Applicant') had been attacked and seriously injured on two occasions by unknown persons.
b. The Tribunal did not accept the Applicant’s claim that those persons were members of a gang, whose former leader had been murdered by the Applicant's brother and who now sought revenge against the Applicant. On that basis, it affirmed the decision at first instance to refuse the applicants' claims.
c. The Tribunal was required to, and did not, consider whether the applicants faced a real chance or real risk of serious or significant harm pursuant to ss 36(2)(a) and 36(2)(aa), on the basis of the two attacks which the Tribunal accepted had occurred.
2. The decision of the Administrative Appeals Tribunal was affected by procedural unfairness in that the Tribunal's decision was based on the Applicant's credibility and a substantial delay had occurred between the Tribunal hearings and the Tribunal's decision.
Particulars
a. The applicants appeared before the…

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: [2017] FCCA 1800
Decision Date: 2 August 2017

CaseChat Overview and Summary

The applicant, CDY15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant evidence or had applied the correct legal principles in determining the applicant's claims for protection.

Judge Hartnett found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution and the real chance of future persecution. The Court held that a failure to properly engage with and assess all relevant evidence, particularly concerning the applicant's specific circumstances and the country information, constituted a jurisdictional error. The Court reasoned that the delegate's assessment was superficial and did not meet the requirements of the Migration Act 1958 (Cth) and the associated regulations for determining protection claims.

The Court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders