CHZ16 v Minister for Immigration - [2018] FCCA 2197

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2197

Catchwords:
MIGRATION – Application for judicial review – whether Applicants afforded procedural fairness – whether Tribunal findings illogical or irrational – whether Tribunal acted upon an invalid s.438 certificate – no procedural unfairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 424A, 425.

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
Minister for Immigration and Citizenship v Le [2007] FCA 1318

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZAFZ v Minister for Immigration & Anor [2016] FCCA 1319

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107

WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184

First Applicant:

CHZ16

Second Applicant:

CIA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1803 of 2016

Judgment of:

Judge McNab

Hearing date:

14 February 2018

Date of Last Submission:

14 February 2018

Delivered at:

Melbourne

Delivered on:

15 August 2018

REPRESENTATION

Counsel for the Applicant:

Applicants appearing in person

Counsel for the Respondents:

Mr. L. Brown

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 21 March 2017 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1803 of 2016

CHZ16

First Applicant

CIA16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application comes before the Court by way of an amended application filed 21 March 2017. The Applicants are seeking judicial review under the Migration Act 1958 (‘the Act’) of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 August 2016. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse granting the Applicants protection visas (‘Visas’).

Background

The background and procedural history of this matter is extensive. The First Respondent has provided a concise summary of the background circumstances, which are replicated exactly below with citations omitted:
The Applicants are husband and wife and citizens of Malaysia.
The Applicants arrived in Australia in 2010 holding “Electronic Travel Authorities” valid until 3 May 2010. They thereafter did not depart Australia and were detained by immigration officers on 8 March 2014.
On 19 March 2014, the Applicants applied for the Visas. The Applicants claimed to fear harm from loan-sharks and the police in Malaysia following an incident the Applicants claim to have occurred in 2009 where they were kidnapped and threatened by loan-sharks.
On 12 June 2014, the delegate refused to grant the Visas.
The Applicants applied to the Tribunal for review of the delegate's decision, which was affirmed on 25 July 2014. This decision was set aside by Mansfield J of the Federal Court of Australia.
The matter…

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: [2018] FCCA 2197
Decision Date: 15 August 2018

CaseChat Overview and Summary

The applicant, CHZ16, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the assessment of CHZ16's claims of persecution in their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed CHZ16's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining if the delegate had adequately addressed the specific vulnerabilities and experiences articulated by the applicant.

Judge McNab found that the delegate had failed to adequately assess the applicant's claims of past persecution, specifically overlooking crucial aspects of the evidence presented. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to undertake a thorough and logical assessment of all relevant evidence. The delegate's failure to engage with significant portions of the applicant's testimony and the available country information meant that the decision was vitiated by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders