CJV15 v Minister for Immigration - [2016] FCCA 1447

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJV15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1447

Catchwords:
MIGRATION – Judicial review – Protection (Class XA) visa – decision of Administrative Appeals Tribunal – whether fear of harm on a Convention ground – whether Tribunal unreasonable – whether Tribunal biased – whether jurisdictional error.

Legislation:

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
Evidence Act 1995 (Cth), s.60(1)
Migration Act1958 (Cth), ss.14, 36(2)(a) or (aa), 36(2A), 65, 422B, 476
Migration Regulations 1994 (Cth), Schedule 2, cl.866

Cases cited:

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181

Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 76 ALJR 667; (2002) 187 ALR 574; (2002) 67 ALD 577
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Re Refugee Review Tribunal;Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380

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: [2016] FCCA 1447
Decision Date: 17 June 2016

CaseChat Overview and Summary

The applicant, CJV15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in s 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Antoni Lucev in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the assessment of the risk of harm should the applicant be returned to their country of origin. The Court was required to determine if the delegate's findings were reasonably open on the evidence before them, and whether the delegate had properly applied the relevant legal principles in assessing the risk of persecution.

Judge Lucev found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly in relation to the alleged persecution. The Court held that the delegate's assessment of the applicant's credibility was flawed, as it did not properly engage with the entirety of the evidence presented. The legal principle applied was that a decision-maker must give proper, genuine and realistic consideration to all relevant evidence when assessing a protection visa claim. The Court concluded that the delegate's decision was affected by jurisdictional error.

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

Orders