Ciw15 v Minister for Immigration - [2017] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIW15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1206

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal erred in failing to give information to the applicant that enlivened an obligation under section 424A of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in its consideration of the corroborative documents – whether the Administrative Appeals Tribunal erred in failing to consider state protection – whether the Administrative Appeals Tribunal erred in failing to consider relocation – whether the Administrative Appeals Tribunal misconstrued section 36(2A) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal’s decision was irrational or illogical and did not involve active intellectual consideration – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.44.12
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 438, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant:

CIW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3032 of 2015

Judgment of:

Judge Emmett

Hearing date:

6 June 2017

Date of Last Submission:

6 June 2017

Delivered at:

Sydney

Delivered on:

6 June 2017

REPRESENTATION

Applicant appeared in person with a Malayalam interpreter.

Counsel for the Respondents:

Mr Tim Reilly

Solicitors for the Respondents:

DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3032 of 2015

CIW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 October 2015 (“the Tribunal”).
The applicant is a citizen of India and of Catholic faith who fears harm from Hindus or Muslims in India as a result of the conversion of his wife from Hinduism to Catholicism.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and…

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 1206
Decision Date: 6 June 2017

CaseChat Overview and Summary

The applicant, Ciw15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before Emmett J of the Federal Court of Australia.

The primary 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, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Emmett J found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court held that the delegate's assessment contained a mischaracterisation of the evidence presented by the applicant, leading to an erroneous conclusion. This failure to adequately assess the core elements of the protection visa claim constituted a jurisdictional error. The Court therefore quashed the Minister's decision.

Orders