CKV16 v Minister for Immigration - [2018] FCCA 1449

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1449

Catchwords:
MIGRATION – Application for judicial review – conduct of interpreter – whether there was fraud on the applicant – whether there was jurisdictional error – no fraud on the applicant – no jurisdiction over decision of the delegate – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), Pt. 7AA; ss.425, 473CC, 473DA(1), 473DC, 473DD

Cases cited:

AFK16 v Minister for Immigration [2016] FCCA 1826 [12]

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

DBE16 v Minister for Immigration [2017] FCCA 487 [63]

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 (1999) 92 FCR 6
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 (2001) 115 FCR1
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (2013) 219 FCR 212;

SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

Applicant:

CKV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1870 of 2016

Judgment of:

Judge McNab

Hearing date:

16 November 2017

Date of Last Submission:

16 November 2017

Delivered at:

Melbourne

Delivered on:

7 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application filed 2 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs as agreed by the parties and in the event that there is no agreement, to be fixed by the Court upon receipt of written submissions by each party not exceeding

2 pages (each) to be filed by 21 June 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1870 of 2016

CKV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an application filed on 2 September 2016 and amended on

1 May 2017, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated

15 August 2016 that affirmed a decision of the delegate of the First Respondent to refuse to grant the Applicant a Protection visa.
The grounds of review are as follows:
1. The decision of the Independent Assessment Authority (the IAA) was affected by jurisdictional error in that it was unable to carry out its statutory task as required by s.473CC [of the Migration Act 1958 (Cth)], namely to review the fast track reviewable decision made by the delegate.
Particulars
(a) The Applicant was deprived of the opportunity to properly present his case to the delegate during the interview, which took place on 19 February 2016;
(b) The Applicant refers to and relies on the affidavit filed in this proceeding by himself, his sister-in-law Ms Abir Ali, and by the NAATI level 3 interpreter Ms Feyrouz Khayat, which annexes…

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 1449
Decision Date: 7 June 2018

CaseChat Overview and Summary

The applicant, CKV16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant CKV16 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 delegate of the Minister had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the assessment of CKV16's claims of persecution. This involved examining whether the delegate's findings of fact were supported by evidence and whether the delegate had correctly applied the legal principles governing the assessment of protection claims under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

Judge McNab found that the delegate had failed to adequately consider crucial aspects of CKV16's evidence regarding past persecution and the real chance of future persecution. The Court held that the delegate's assessment was flawed because it did not engage with the entirety of the evidence presented, leading to an unreasonable conclusion. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and apply the correct legal tests when determining a protection visa application.

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

Orders