CLJ15 v Minister for Immigration - [2017] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLJ15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 467

Catchwords:
MIGRATION – Review of decision from the Administrative Appeals Tribunal – whether Tribunal made biased decision – whether Applicant was afforded procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B)(c)

Cases cited:

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259

SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884

SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

Applicant:

CLJ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2590 of 2015

Judgment of:

Judge Hartnett

Hearing date:

8 February 2017

Delivered at:

Melbourne

Delivered on:

8 February 2017

REPRESENTATION

The Applicant:	In Person
Counsel for the Respondents:	Mr Tran

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2590 of 2015

CLJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application for judicial review of the decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (‘the Tribunal’) made 19 October 2015, which affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The Applicant filed his application for judicial review on 23 November 2015. In that application the Applicant set out two grounds of review as follows:-
“A. Refugee and in need of protection
1. Biased Decision and made Jurisdictional Error
The First and Second respondent had breached procedural fairness, in particular the “No Evidence Rule” as did not act fairly in reaching, to the unreasonable decision in relation to finding “the applicant do not have statutory effective protection in Australia under the Migration Act 1958 in the absence of any adverse information in relation to the protection claim. By doing this the Respondents deviated from deciding the matter on merits basis but made unfair judgments and, where a fair and impartial decision-maker would come to a decision finding in favour of the applicant under Subsection 36(2) of the Migration Act having considered the factual circumstance of the applicants claim.
Particulars:
I departed my home country with my brother due to the treat [sic] and persecution by Taliban for two reasons: 1. Because of our family, uncle/father in law’s working with American forces, 2. Because of our business providing breads to government and American forces on daily basis and we received direct threats from Taliban. We eventually arrived into Australia and sought protection. I have fear of return to my home country because of the threats to my life.
The Second Respondent failed to correct the failure and error of the First Respondent and affirm his/her decision, and made the same error…

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: [2017] FCCA 467
Decision Date: 8 February 2017

CaseChat Overview and Summary

The applicant, CLJ15, 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 CLJ15 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 Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing CLJ15's claims for protection. Specifically, the Court considered whether the delegate had adequately assessed the risk of harm CLJ15 might face if returned to their country of origin, and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Hartnett found that the delegate had failed to properly consider crucial aspects of CLJ15's claim, particularly concerning the risk of persecution based on imputed political opinion. The delegate's assessment was found to be superficial and did not engage with the detailed evidence provided by CLJ15 regarding the specific threats they faced. The Court reiterated the principle that a failure to consider relevant evidence or to properly assess the risk of harm constitutes jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders