CHY16 v Minister for Immigration - [2017] FCCA 1023

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHY16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1023

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the application was made on an approved form and is not invalid – the Tribunal gave detailed reasons explaining the adverse credibility findings – the adverse credibility findings were open to the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

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

Cases cited:

BBJ16 v Minister for Immigration and Anor [2016] FCCA 2521

CFA16 v Minister for Immigration and Anor [2017] FCCA 278

SZUGL v Minister for Immigration [2017] FCCA 419

SZUTU v Minister for Immigration [2017] FCCA 593

Applicant:

CHY16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2273 of 2016

Judgment of:

Judge Street

Hearing date:

17 May 2017

Date of Last Submission:

17 May 2017

Delivered at:

Sydney

Delivered on:

17 May 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr A Markus
Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2273 of 2016

CHY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a constitutional writ within the Court’s jurisdiction under section 476 of the Migration Act in respect of a decision of the Tribunal made on 1 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country.
The applicant departed Bangladesh illegally by boat in January 2013 bound for Thailand. The applicant resided illegally in Thailand for a period of time and then travelled to Malaysia. The applicant resided illegally in Malaysia and then departed for Indonesia. The applicant then resided illegally in Indonesia for a short period and then caught a boat bound for Australia in March of 2013. That boat was intercepted by the Australian authorities on 28 March 2013. The applicant lodged an application for protection on 19 June 2013 which was deemed valid on 21 June 2013.

The delegate’s decision

The applicant claimed to fear harm because he was involved in the Jamaat-e-Islami since he left school and as a particular man who was the Secretary of the local branch of the Awami League, had forcibly taken his family’s land. The applicant claimed as a result of the confrontation with the particular main, that his brother was beaten and on release from hospital his brother disappeared. The applicant claimed to fear being severely beaten or killed by the particular man and other supporters of the Awami League if he returned to Bangladesh. The applicant claimed to fear harm based on his actual or imputed political opinion of being opposed to the Awami League and the land dispute with the particular…

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 1023
Decision Date: 17 May 2017

CaseChat Overview and Summary

The applicant, CHY16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family 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 the applicant's claims for protection.

Judge Street's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper consideration of the evidence and the relevant criteria under the *Migration Act 1958* (Cth). The Court examined the delegate's assessment of the applicant's fear of persecution and whether this assessment was based on a rational and logical evaluation of the information provided. The Court affirmed that a failure to properly consider material facts or to apply the correct legal test could constitute jurisdictional error.

The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, leading to a jurisdictional error in the decision-making process. Consequently, the Minister's decision was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders