CHH16 v Minister for Immigration - [2017] FCCA 2227

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHH16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2227

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to invite and hear witnesses of the applicant – whether the Tribunal erred by failing to consider the claims of the applicant – no jurisdictional error –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 438, pt.7

Cases cited:

AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424

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

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant:

CHH16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2241 of 2016

Judgment of:

Judge Smith

Hearing date:

1 August 2017

Date of Last Submission:

1 August 2017

Delivered at:

Sydney

Delivered on:

1 August 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Mr T Reilly

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2241 of 2016

CHH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

The applicant is a citizen of India who arrived in Australia on an entertainment visa on 9 August 2004. The applicant lodged an application for a protection visa on 16 August 2004. The applicant claimed in that application that he feared persecution in India for reason of his political opinion because he had been active in the communist party and the trade union movement. The applicant also claimed that he feared harm as a Christian. That application was refused by a decision made by a delegate of the Minister on 16 September 2004.
The applicant applied to the Refugee Review Tribunal[1] (RRT) for a review of that decision. The RRT made a number of decisions, the first of which was set aside by orders made upon judicial review. The third decision, which was to affirm the decision of the delegate, was made on 11 September 2008. The applicant unsuccessfully sought judicial review of that decision in this Court. The applicant appealed to the Federal Court and then sought special leave to appeal to the High Court. Both of those applications were unsuccessful.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 11 October 2012, the applicant lodged a second application for a protection visa and at this time, he made different claims. Essentially, the applicant claimed that he was divorced in August 2010, that his ex-wife lives in Kerala and that her brothers are a part of criminal gangs. Those brothers feel hatred and animosity towards…

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 2227
Decision Date: 1 August 2017

CaseChat Overview and Summary

The applicant, CHH16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was asked to consider whether the Tribunal had properly applied the principles established in *K v Minister for Immigration and Multicultural Affairs* [2004] HCA 70 and *SZSSJ v Minister for Immigration and Multicultural Affairs* [2010] FCA 1344 concerning the definition and identification of a "particular social group" for the purposes of the *Migration Act 1958* (Cth). The Court also considered whether the Tribunal had adequately assessed the real chance of harm to the applicant if returned to their country of origin.

Judge Smith found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claims. The Court held that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the formation and characteristics of the alleged particular social group. Furthermore, the Court determined that the Tribunal had not properly applied the legal test for assessing the real chance of harm, leading to an erroneous conclusion. The Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders