CKX16 v Minister for Immigration - [2018] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKX16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1854

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether an enhanced tape recording and transcript of the Tribunal hearing should be admitted into evidence.

Legislation:
Evidence Act 1995 (Cth), ss.48, 59(1), 135, 136
Federal Circuit Court Rules 2001, r.15.06

Cases cited:

Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180; (1987) 76 ALR 45; (1987) 62 ALJR 7; (1987) 30 A Crim R 417; [1987] HCA 58
Director of Public Prosecutions v Selway (Ruling No.9) [2007] VSC 247
Hoser v R [2003] VSCA 194
Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Corporation (ABC) [2010] NSWSC 711
R v Cassar; R v Sleiman [1999] NSWSC 436
R v Mondon [2001] QCA 402
Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500; (2012) 208 FCR 346

Other materials:

J D Heydon Cross on Evidence, LexisNexis (looseleaf)

Applicant:

CKX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1874 of 2016

Judgment of:

Judge Riley

Hearing dates:

30 April 2018, 23 May 2018 and 18 June 2018

Date of last submission:

18 June 2018

Delivered at:

Melbourne

Delivered on:

10 July 2018

REPRESENTATION

Counsel for the applicant:

Matthew Albert and Nick Wallwork on 30 April 2018
Matthew Albert on 23 May 2018 and 18 June 2018

Solicitors for the applicant:

None

Counsel for the first respondent:

Andrew Yuile

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

Exhibit JC-1 to the affidavit of Joseph Carra affirmed on 4 June 2018, being a USB containing an enhanced recording of the applicant’s hearing before the Administrative Appeals Tribunal, be admitted into evidence.
Exhibit AG-5 to the affidavit of Antonietta Guerra affirmed on 18 May 2018, being the transcript of the enhanced tape recording, be admitted into evidence.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1874 of 2016

CKX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This judgment concerns the applicant’s objections to the admissibility of certain affidavits upon which the Minister for Immigration and Border Protection seeks to rely. The substantive application seeks review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant claimed that he witnessed a murder in Fiji. He now claims that he told the Tribunal orally that the murderer was associated with the army. The Tribunal did not consider that claim. There is little doubt that, if the applicant made that claim, the Tribunal’s failure to consider it would have constituted a jurisdictional error.
The Minister disputes the applicant’s claim that he told the Tribunal that the murderer was associated with the army. To support his case, the Minister wishes to rely…

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 1854
Decision Date: 10 July 2018

CaseChat Overview and Summary

The applicant, CKX16, 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 the applicant a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had failed to consider relevant information when assessing the applicant's claims for protection. Specifically, the Court was asked to determine if the delegate had overlooked or failed to give sufficient weight to certain evidence provided by the applicant regarding their fear of persecution in their country of origin.

Judge Riley found that the delegate had indeed failed to adequately consider crucial aspects of the applicant's evidence. The Court applied the principle that a decision-maker must genuinely consider all relevant information placed before them. The delegate's assessment was found to be flawed because it did not properly engage with the specific details of the applicant's experiences and the reasons for their fear. This failure meant the decision was vitiated by jurisdictional error.

Consequently, the Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders