CED16 v Minister for Immigration - [2017] FCCA 233

FEDERAL CIRCUIT COURT OF AUSTRALIA

CED16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 233

Catchwords:
MIGRATION – Protection (Class XA) visa – adverse findings made by the Authority were open – Court not satisfied determination in SZTAL warrant an adjournment – no denial of procedural fairness by reason of the applicant not being provided with the certificate in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 425, 473CD, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 476, pt.7AA.

Cases cited:

MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant:

CED16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2118 of 2016

Judgment of:

Judge Street

Hearing date:

14 February 2017

Date of Last Submission:

14 February 2017

Delivered at:

Sydney

Delivered on:

14 February 2017

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu
Stephen Hodges Lawyers

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

Grant leave to the Applicant to file in Court the document described as “Second Amended Application” and dispense with the need for the electronic filing of the same.
The second amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2118 of 2016

CED16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 11 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is a Tamil who was born in a particular district in the Eastern province and has lived for most of his life in that district. The applicant lived and worked in Doha, Qatar from approximately 26 August 2009 to 31 July 2010. The applicant departed Sri Lanka illegally on 25 August 2012 and arrived at Christmas Island on 10 September 2012. The applicant applied for protection on 4 September 2015.

The Delegate

The applicant claims that his father was killed in 1997 and believes that was because of crossfire between the Sri Lankan Authorities (“SLA”) and the Liberation Tamil Tigers of Eelam (“LTTE”).
The applicant alleges in July 2011 that he was appointed as the vice-president of the Rural Development Society (“RDS”) for a particular village. The applicant claims that members from the Tamil Makkal Viduthalai Pulikal (“TMVP”) political party came to his residence and asked the applicant to gather a crowd in preparation for a meeting. The applicant claims that he visited…

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 233
Decision Date: 14 February 2017

CaseChat Overview and Summary

The applicant, CED16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether CED16 would face persecution if returned to their country of origin. The matter came before Judge Street of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by an error of law, specifically whether the delegate's assessment of the risk of persecution was reasonable and based on relevant considerations. This involved examining whether the delegate had properly considered all the evidence before them, including the applicant's claims and country information, and whether the ultimate conclusion reached was one that a reasonable decision-maker could have reached.

Judge Street found that the delegate had failed to adequately consider certain aspects of the country information relevant to the applicant's claims, leading to an unreasonable assessment of the risk of persecution. The Court held that a failure to properly engage with all relevant evidence, particularly when it pertains to the core elements of a protection visa claim, constitutes an error of law. Consequently, the Minister's decision was set aside.

The Court ordered that the decision of the Minister be remitted to the Minister for redetermination according to law.

Orders