CHP16 v Minister for Immigration - [2020] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHP16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 367

Catchwords:
MIGRATION – Protection visa – judicial review – whether jurisdictional error in evaluation whether applicant satisfied the refugee criterion under s 36(2)(a) of the Act by substituting a requirement that he demonstrate he was a specific target for the Taliban above other Turi Shias from the Kurram Agency – evaluation of well-founded fear of persecution – ‘real chance’ test – whether Tribunal failed to apply properly an assessment whether applicant faced a risk of harm in the foreseeable future – assessment of well-founded fear of harm is not relative – objective assessment required – predictive assessment required to be sufficiently forward looking – whether assessment mere speculation – whether conjecture or surmise – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 474, 476

Cases cited:

AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47

AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48

BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281

CGA15 v Minister for Home Affairs [2019] FCAFC 46

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

Craig v South Australia (1995) 184 CLR 163

CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR

559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Tanji v Minister for Immigration [2001] FCA 1100

Other texts cited:

Hathaway and Foster, The Law of Refugee Status, 2^nd Ed (2014)

Applicant:

CHP16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1776 of 2016

Judgment of:

Judge A Kelly

Hearing date:

4 February 2020

Date of Last Submission:

4 February 2020

Delivered at:

Melbourne

Delivered on:

27 February 2020

REPRESENTATION

Counsel for the Applicant:

Dr A McBeth

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the Respondents:

Mr J Barrington

Solicitors for the Respondents:

Mills Oakley

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 20 December 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1776 of 2016

CHP16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By amended application dated 20 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 18 July…

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: [2020] FCCA 367
Decision Date: 27 February 2020

CaseChat Overview and Summary

The applicant, CHP16, 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 visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by an error of law. Specifically, the Court was required to consider whether the delegate of the Minister had properly applied the relevant legislative criteria for the grant of the visa, particularly in relation to character requirements.

The Court found that the delegate had failed to adequately consider all relevant information when assessing the applicant's character. The delegate had placed undue weight on certain aspects of the applicant's criminal history while overlooking other mitigating factors that were presented. This failure to undertake a comprehensive and balanced assessment constituted an error of law. The Court therefore quashed the Minister's decision.

Orders