CED15 v Minister for Immigration - [2016] FCCA 3082

FEDERAL CIRCUIT COURT OF AUSTRALIA

CED15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3082

Catchwords:
MIGRATION – Judicial review – protection visa – failure to take into account relevant considerations.

Legislation:

Migration Act 1958 (Cth), ss.425, 430

Federal Circuit Court Rules 2001 (Cth), sch.3

Cases cited:

Minister For Immigration Cultural Affairs & Yusef [2001] HCA 30

Applicant:

CED15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2358 of 2015

Judgment of:

Judge Harland

Hearing date:

9 November 2016

Date of Last Submission:

9 November 2016

Delivered at:

Melbourne

Delivered on:

30 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 21 October 2015 and amended on 13 October 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2358 of 2015

CED15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Tamil Sri Lankan male. He is a Hindu. He left Sri Lanka in May 2012.
The applicant’s counsel filed lengthy written submissions with large portions of text appearing in footnotes which does not add in ease of reading.
Somewhat unhelpfully the applicant’s submissions do state that the applicant makes no submissions in support of grounds 1 to 5 of the amended application but is silent as to whether or not the applicant is still proceeding with…

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: [2016] FCCA 3082
Decision Date: 30 November 2016

CaseChat Overview and Summary

The applicant, CED15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Harland of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Refugee Tribunal’s (now the Administrative Appeals Tribunal) assessment of the applicant’s claims was affected by jurisdictional error. Specifically, the Court was required to determine if the Tribunal had failed to consider relevant evidence or had made findings of fact that were not open to it, thereby vitiating its decision. The applicant argued that the Tribunal had not adequately considered the evidence relating to the specific reasons for potential persecution.

Judge Harland found that the Tribunal had indeed made jurisdictional error. The Court reasoned that the Tribunal had failed to properly engage with the applicant's evidence concerning the specific nature and likelihood of harm they might face upon return to their country of origin. The Tribunal's findings were found to be based on an incomplete or flawed assessment of the evidence, leading to an erroneous conclusion regarding the well-foundedness of the fear of persecution. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence presented by an applicant when assessing a claim for protection.

Consequently, the Court set aside the decision of the Refugee Tribunal and remitted the application for a protection visa to the Tribunal to be heard and determined according to law.

Orders