CLB15 v Minister for Immigration - [2018] FCCA 1323

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLB15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1323

Catchwords:
MIGRATION – Protection visa refused – applicant claimed he was defrauded of borrowed money and was facing serious harm by moneylenders in Sri Lanka – applicant conceded evidence did not support a refugee protection claim but claimed it did support a complementary protection claim – significant unexplained period of time prior to issuing this proceeding – application for ministerial intervention not a satisfactory explanation for delay – grounds not supported by particulars – little prospects of success – application for an extension of time – application refused.

Legislation:

Migration Act 1958, ss.36(2a), 36(2)(aa), 477(2)

Cases cited:
ActewAGL Distribution, Partnership between Actew Distribution Ltd and
Jemena Networks (ACT) Pty Ltd v Australian Energy Regulator (2011) 195 FCR 142
Ahmed v Minister for Immigration and Citizenship [2011] HCA Trans 35

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) [1998] FCA 1126

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

CLB15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2573 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

19 April 2018

Date of Last Submission:

19 April 2018

Delivered at:

Melbourne

Delivered on:

19 April 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

This application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2573 of 2015

CLB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

On 24 March 2015 the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“tribunal”) decided to affirm the decision of the minister’s delegate not to grant the applicant the protection visa he sought.
On 19 November 2015, that is to say well beyond the date limited for the filing of an application for judicial review under the

Migration Act 1958
, the applicant sought relief in this court for orders for the issue of constitutional writs. He needed an order extending the time for the commencement of this proceeding.
The question in this case was…

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 1323
Decision Date: 19 April 2018

CaseChat Overview and Summary

The applicant, CLB15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse CLB15's application for 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 erred in law by failing to adequately consider the applicant's claims of past persecution and fear of future persecution in their country of origin. Specifically, the Court was required to determine if the delegate's assessment of the evidence presented by CLB15 was reasonable and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to the assessment of protection claims.

His Honour Judge Wilson found that the delegate had failed to adequately consider crucial aspects of CLB15's evidence regarding the subjective fear of persecution. The Court reasoned that a proper assessment required a holistic and nuanced evaluation of all the evidence, including the applicant's personal narrative and corroborating information, to determine if a real chance of persecution existed. The delegate's approach was found to be overly narrow and failed to engage with the substance of the applicant's claims in a manner consistent with the legal framework governing protection visa applications.

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

Orders