CGK15 v Minister for Immigration - [2016] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGK15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1463

Catchwords:
MIGRATION – Refugee application – Vietnamese citizen – lack of credibility.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 424A, 477

Cases cited:

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77

Applicant:

CGK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 63 of 2015

Judgment of:

Judge Young

Hearing date:

3 June 2016

Date of Last Submission:

3 June 2016

Delivered at:

Darwin

Delivered on:

16 June 2016

REPRESENTATION

Counsel for the Applicant:

Ms Nguyen

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time is granted.
The application filed 30 October 2015 is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 63 of 2015

CGK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision by the Administrative Appeals Tribunal to reject an application for a protection visa.
The applicant is a citizen of Vietnam. He is 43 years old. The applicant claimed to have a well-founded fear of persecution because of his agitation in 2011 or 2012 against corruption by officials in his village. The delegate and the Tribunal found he lacked credibility and his claim was rejected.

Chronology

It is useful to set out a chronology:
2007 - 2008applicant convicted of producing drugs, imprisoned for 15 months and deported from UK to Vietnam
2011 – 2012 applicant claims persecution by officials in Vietnam
8.3.2013applicant left Vietnam legally on tourist visa to Indonesia
5.4.2013applicant arrives in Australia and undergoes entry interview and states that he has not resided in any other country
21.8.2013applicant interviewed by Vietnamese immigration officials at Yongah Hill IDC
contemporaneous record of interview questions made by Australian official
1.4.2014UK authorities provide information that applicant had entered the UK illegally in 2007, been convicted of drugs production and sentenced to 15 months imprisonment, made an application for asylum which was withdrawn on 20.2.2008 and was deported on 18.6.2008
6.6.2014applicant applies for refugee visa and falsely states that he has not been convicted of any offence, has not been imprisoned and has not been deported from another country
27.10.2014interviewed by delegate. Applicant admits entering the UK illegally in 2007, being convicted of drugs production and imprisoned for 15 months, making an application for asylum which he withdrew on 20.2.2008 and being deported on 18.6.2008
9.1.2015 application rejected…

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 1463
Decision Date: 16 June 2016

CaseChat Overview and Summary

The applicant, CGK15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CGK15 a visa. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the court was asked to consider whether the delegate of the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when assessing CGK15's application.

Judge Young found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to CGK15's circumstances. This failure constituted a jurisdictional error, as it meant the delegate had not properly exercised the power conferred upon them by the relevant legislation. The court applied the principles of administrative law concerning the duty to consider relevant material when making a decision.

Consequently, the court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders