Chung v Minister for Immigration - [2014] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2195

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error disclosed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.359A(1)

Migration Regulations 1994 (Cth), cl.485.224 of Schedule 2, PIC 420(1A) of Schedule 4

Vyas v The Minister for Immigration and Citizenship [2012] FMCA 92
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

First Applicant:

RANJIT KAUR CHUNG

Second Applicant:

KULDEEP SINGH GILL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 84 of 2014

Judgment of:

Judge Simpson

Hearing date:

9 September 2014

Date of Last Submission:

9 September 2014

Delivered at:

Adelaide

Delivered on:

9 September 2014

REPRESENTATION

The Applicants:

In person

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The application for review filed 19 March 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 84 of 2014

RANJIT KAUR CHUNG

First Applicant

KULDEEP SINGH GILL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

Introduction

I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 24 February 2014. The first applicant appears before me in person. She has indicated to the Court that she has had the opportunity of studying the green book provided by the first respondent and their Outline of Submissions.
I heard from the applicant as to any submissions that she wanted to put. She acknowledged that she is not a lawyer and is not au fait with legal matters. She nevertheless has told the Court that what she would like the Court to do is to “give her justice” which, from all that the applicant has said, shall in my view be understood to mean, that the Court should allow her to have a visa.
I have taken into account what has been said by the first applicant.
The first applicant came to Court with the second applicant, who is the first applicant’s partner. He did not put submissions to the Court.
I indicated that in giving these reasons for my decision, I have relied on the submissions that have been put before me by the first respondent.

Background

The background to the matter is that the primary applicant, Mrs Ranjit Kaur Chung, is a citizen of India. On 7 January 2011 she lodged an application for a visa. Her nominated occupation was a cook. Her application stated that she had requested skills assessment from Trades…

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: [2014] FCCA 2195
Decision Date: 9 September 2014

CaseChat Overview and Summary

Chung (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a visa. The applicant had applied for a Protection visa, which was refused by the Minister. The applicant then sought review of this refusal in the Administrative Appeals Tribunal (AAT), which affirmed the Minister's decision. The applicant subsequently filed an application for judicial review in the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the court was asked to consider whether the AAT had failed to adequately consider certain evidence presented by the applicant and whether it had applied the correct legal test in determining whether the applicant would be subjected to persecution or serious harm if returned to their country of origin. The applicant also contended that the AAT had failed to provide adequate reasons for its decision.

Judge Simpson found that the AAT had indeed erred in law. The Tribunal had failed to properly engage with significant documentary evidence that supported the applicant's claims of persecution. Furthermore, the AAT's reasoning did not demonstrate a clear application of the relevant legal principles concerning the assessment of protection claims, particularly in relation to the risk of serious harm. The judge concluded that the AAT's decision was vitiated by a failure to provide adequate reasons and a misapplication of the legal standard.

The Federal Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders