CKS16 v Minister for Immigration - [2018] FCCA 3720

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKS16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3720

Catchwords:
MIGRATION – Protection visa – application for judicial review of decision of second respondent – whether Tribunal considered or properly dealt with applicant’s claim – whether Tribunal understood and addressed the applicant’s claims and integers of claims – whether Tribunal properly evaluated risk of future harm – applicable principles – need to assess reasonably foreseeable risk of harm Tribunal had a consciousness of the applicant’s claim and engaged in an active intellectual evaluation of that claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 414, 474, 476

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

AUV15 v Minister for Immigration and Border Protection [2018] FCA 812

AVU15 v Minister for Immigration and Border Protection [2017] FCA 608

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Texts & materials:
Conventional and Protocol relating to the Status of Refugees 1951

Applicant:

CKS16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1867 of 2016

Judgment of:

Judge A Kelly

Hearing date:

7 December 2018

Date of Last Submission:

7 December 2018

Delivered at:

Melbourne

Delivered on:

18 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr White

Solicitors for the Applicant:

Russell Kennedy Lawyers

Counsel for the Respondents:

Mr McDermott

Solicitors for the Respondents:

DLA Piper

ORDERS

Pursuant to r 7.01(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the title of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
The amended application filed on 25 September 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,209.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1867 of 2016

CKS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By amended application filed on 25 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 August 2016 affirming a decision of a delegate of the…

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 3720
Decision Date: 18 December 2018

CaseChat Overview and Summary

The applicant, CKS16, sought judicial review of a decision made by the Minister for Immigration, the second respondent, concerning an application for a protection visa. The core of the dispute revolved around whether the Administrative Appeals Tribunal (AAT) had adequately considered and addressed the applicant's claims and the specific details of those claims, particularly in relation to the risk of future harm. The matter came before A Kelly J in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Tribunal had committed jurisdictional error by failing to consider or properly deal with the applicant's claims, and whether it had sufficiently understood and addressed the integers of those claims. Furthermore, the Court was required to determine if the Tribunal had properly evaluated the reasonably foreseeable risk of future harm to the applicant.

A Kelly J found that the Tribunal had demonstrated a consciousness of the applicant's claims and had engaged in an active intellectual evaluation of them. The Court applied the principles that require a tribunal to assess the reasonably foreseeable risk of harm. Having concluded that the Tribunal had properly considered the applicant's case and had not made a jurisdictional error, the application was dismissed.

Orders