CKD16 v Minister for Immigration - [2017] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKD16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1929

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – existence of two s.438 certificates – whether the information the subject of the certificates was credible, relevant and significant – whether the non-disclosure of the information the subject of the certificates gave rise to any practical injustice – the Tribunal did not have regard to or act upon the s.438 certificates – the applicant was not denied a real and meaningful hearing – the undisclosed information was not credible, relevant and significant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 422B, 424A, 438, 476

Migration Regulations 1994, reg.2.41

Cases cited:

AVO15 v Minister for Immigration and Border Protection [2017] FCA 1081

MZAFZ v Minister for Immigration and Border Protection [2017] FCA 566

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Applicant:

CKD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2332 of 2016

Judgment of:

Judge Street

Hearing date:

15 August 2017

Date of Last Submission:

29 August 2017

Delivered at:

Sydney

Delivered on:

22 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2332 of 2016

CKD16

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 s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 August 2016 affirming a decision to cancel the applicant’s Protection (Class XA) visa.
The applicant alleged he was a stateless Faili Kurd. The applicant applied for and was granted a protection visa on 5 May 2011. On 15 June 2014 the applicant left Australia and entered Iran on 16 June 2014 and left Iran on 22 August 2014 and returned to Australia on 23 August 2014.
The applicant used an Australian travel document issued to him on 31 March 2014 to leave and re-enter Australia. The Tribunal found the applicant used an Iranian passport issued to him by the Iranian Embassy in Canberra on 23 May to enter and leave Iran. The applicant alleged that the passport that he used to enter and leave Iran was a fraudulent passport.
The applicant was sent a letter of notice of intention to consider cancellation under s.107 of the Migration Act on 25 November 2014. That letter made reference to s.101(a) and (b) of the Migration Act which provides as follows:-
A non-citizen must fill in or complete his or her application form in such a way that:
(a)…

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 1929
Decision Date: 22 September 2017

CaseChat Overview and Summary

The applicant, CKD16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family 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. This involved an examination of whether the delegate of the Minister had properly considered all the relevant evidence and applied the correct legal principles in assessing the applicant's claims for protection, particularly in light of the applicant's stated fear of persecution.

Judge Street found that the delegate had failed to adequately assess the applicant's claims regarding the risk of harm upon return to their country of origin. The Court held that a failure to properly consider all relevant evidence, including specific details of past persecution and the potential for future harm, constituted a jurisdictional error. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of protection claims.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders