Cem17 v Minister for Immigration - [2018] FCCA 1391

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1391

Catchwords:
MIGRATION – Review of Administrative Appels Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 425A, 438.

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

BEG15 v Minister for Immigration [2017] FCAFC 198

BNV15 v Minister for Immigration & Anor [2016] FCCA 740

Minister for Immigration v BJN16 [2017] FCAFC 197

Minister for Immigration v CQZ15 [2017] FCAFC 194

Minister for Immigration v Eshetu (1999) 197 CLR 611

MZAFZ v Minister for Immigration [2016] FCA 1081; (2016) 243 FCR 1

Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59 SZMUF v Minister for Immigration [2009] FCA 182
SZTEX v Minister for Immigration Protection [2014] FCA 1269

Applicant:

CEM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1572 of 2017

Judgment of:

Judge Driver

Hearing date:

29 May 2018

Delivered at:

Sydney

Delivered on:

29 May 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Haddad of Clayton Uz

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1572 of 2017

CEM17

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 24 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The 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 legal submissions filed on 17 May 2018.
The applicant is a citizen of India who arrived in Australia on 1 March 2014 on a tourist visa.[1] On 29 April 2014, the applicant lodged his application for a protection visa.[2] The application was refused by the delegate on 11 December 2014.[3] On 16 December 2014, the applicant applied to the Tribunal for merits review of the delegate's decision.[4] The Tribunal (differently constituted) affirmed the delegate's decision on 1 April 2016 (First Tribunal Decision).[5]
[1] Tribunal Decision Record (DR) [1].
[2] Court Book (CB) 1-54.
[3] CB 77-92.
[4] CB 93-94.
[5] DR [7].
The applicant applied for judicial review of the First Tribunal Decision on 1 April 2016.[6] By consent of the parties, a judge of this Court quashed the First Tribunal Decision on 20 July 2016 and remitted the matter to the Tribunal for redetermination.[7] The Tribunal then conducted a…

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 1391
Decision Date: 29 May 2018

CaseChat Overview and Summary

The applicant, Cem17, 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 Cem17 a protection visa. The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Cem17's claims for protection. This involved an examination of the delegate's assessment of the evidence presented by Cem17 regarding their fear of persecution.

Driver J found that the delegate had made a jurisdictional error. The reasoning focused on the delegate's failure to adequately consider the specific circumstances of Cem17's claimed fear of persecution, particularly in relation to the risk of harm from a particular group. The Court held that the delegate had not properly engaged with the evidence that would have supported a finding of a real chance of suffering harm, thereby failing to discharge their statutory duty. The legal principle applied was that a failure to consider relevant evidence or a mischaracterisation of that evidence can constitute jurisdictional error.

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

Orders