CKZ19 v Minister for Immigration - [2020] FCCA 284

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKZ19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 284

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to properly assess the applicant’s risk of harm – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 476

Applicant:

CKZ19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1514 of 2019

Judgment of:

Judge Street

Hearing date:

13 February 2020

Date of Last Submission:

13 February 2020

Delivered at:

Sydney

Delivered on:

13 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Oliver Richard Jones

Solicitors for the Applicant:

Parish Patience Immigration Services

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

MinterEllison

ORDERS

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

DATE OF ORDER: 13 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1514 of 2019

CKZ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Subclass 866 Protection visa (“Protection visa”).
The applicant arrived in Australia on 15 November 2011 as an unauthorised maritime arrival. The applicant lodged the application for the Protection visa on 11 October 2012, together with a statement dated 15 January 2012. By letter dated 20 October 2012, the Department notified the applicant of its decision to grant him a Protection visa.
At the time of the applicant’s application for the Protection visa, the applicant was the subject of an obligation under s.101(b) of the Act to complete the application form in such a way that no incorrect answers were given or provided. In his application, the applicant provided a number of incorrect answers, which were given or provided, without descending into each question. These answers were the subject of the notice of intention to cancel dated 22 February 2017 sent from the Department to the applicant.
It is sufficient to identify that the applicant alleged in his Protection visa application that he was stateless and feared persecution in Iraq. There was further information that the notice dated 22 February 2017 identified that was provided in relation to a sponsorship partner application. The notice dated 22 February 2017 identified that the applicant is in fact a citizen of Iraq and that his assertion of being a stateless Kuwaiti Bidoon was incorrect.
The notice dated 22 February 2017 also noted that the applicant had travelled to Iraq on two occasions…

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: [2020] FCCA 284
Decision Date: 13 February 2020

CaseChat Overview and Summary

The applicant, CKZ19, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning an application for a Protection (Class XA) visa. The core of the dispute revolved around whether the AAT had adequately assessed the applicant's risk of harm and whether it had failed to consider a relevant factor in its determination. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had committed jurisdictional error by failing to properly assess the applicant's risk of harm, and whether the Tribunal had failed to take into account a consideration that was relevant to the applicant's claim for protection.

Judge Street found that the AAT had undertaken a comprehensive assessment of the applicant's claims and had considered all relevant factors. The Court determined that the Tribunal's assessment of the risk of harm was open to it on the evidence before it, and that there was no failure to consider a relevant consideration that would amount to jurisdictional error. The applicant's argument that the Tribunal had failed to properly assess the risk of harm was not made out.

Consequently, the application for judicial review was dismissed.

Orders