CEM16 v Minister for Immigration - [2018] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEM16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 605

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China for political and religious reasons – applicant not believed in critical respects – other fears not well-founded – whether the Tribunal gave proper consideration to the applicant’s claims or whether there was a lack of procedural fairness considered – implications of a non-disclosure certificate issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 424A, 438

Cases cited:

AMA15 v Minister for Immigration [2015] FCA 1424

BEG15 v Minister for Immigration [2017] FCAFC 198

SZGIZ v Minister for Immigration (2013) 212 FCR 235
SZSQL v Minister for Immigration (No.2) [2015] FCA 1118

WAEE v Minister for Immigration (2003) 236 FCR 593

Applicant:

CEM16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2129 of 2016

Judgment of:

Judge Driver

Hearing date:

13 March 2018

Delivered at:

Sydney

Delivered on:

13 March 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Cheesman of Clayton Utz

ORDERS

The application filed on 8 August 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2129 of 2016

CEM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 July 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 6 March 2018.
The applicant is a citizen of China who arrived in Australia on a tourist (subclass 676) visa on 24 August 2007.[1] On 8 October 2007, he applied for a protection visa (first protection visa application). On 3 January 2008, a delegate of the Minister refused to grant the protection visa. On 29 September 2008, the then Refugee Review Tribunal affirmed the delegate's decision.[2]
[1] Court Book (CB)…

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 605
Decision Date: 13 March 2018

CaseChat Overview and Summary

The applicant, CEM16, 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 came before Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had properly considered and assessed the applicant's claims for protection, particularly in relation to the risk of persecution based on their membership of a particular social group. This involved determining whether the delegate had applied the correct legal test in assessing the applicant's credibility and the objective reasonableness of their fear of harm.

Judge Driver found that the delegate had failed to adequately consider the applicant's evidence regarding their membership in a particular social group and the associated risks. The Court held that the delegate's assessment was flawed because it did not properly engage with the specific characteristics of the group and the evidence presented by the applicant to demonstrate their membership and the potential for persecution. The Court applied the principles established in cases concerning the assessment of protection visa claims, emphasising the need for a thorough and evidenced-based evaluation of all relevant factors.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.

Orders