FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2582 |
| Catchwords: MIGRATION – application for a protection visa – Tribunal refused to grant visa on the basis that no weight should be given to the Applicant’s documentary evidence – Tribunal determined that no weight should be afforded without making [any] obvious inquiry about a critical fact – if necessary enquiries had been made the issues in contention are likely to have been clarified – Tribunal’s questions about the authenticity of the Applicant’s documents could equally apply to the Minister – relief granted. |
| Legislation: Migration Act 1958 (Cth), s. 36(2)(aa), 415, 420(1), (2) (a) – (b) |
| Applicant: | CLK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 61 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 March 2017 |
| Date of Last Submission: | 20 March 2017 |
| Delivered at: | Canberra |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Wilson |
| Solicitors for the Applicant: | Pennicott Weir Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue to remove the Tribunal’s decision record into this Court and that decision be quashed.
Pursuant to a writ of mandamus, the matter be remitted to the Tribunal and for the matter to be heard and determined according to law.
The First Respondent is to pay the Applicant’s costs as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 61 of 2016
| CLK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this matter is…
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Details
- Case
- [2017] FCCA 2582
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Federal Court of Australia, with the applicant, CLK16, challenging a decision made by the Minister for Immigration. The core of the dispute revolved around the Minister's assessment of CLK16's claim under the Migration Act 1958 (Cth), specifically concerning whether CLK16 met the criteria for protection.
The legal issues before the Court were whether the Minister's decision was affected by jurisdictional error. This involved determining whether the decision-maker had failed to properly consider the applicant's individual circumstances, whether any adverse credibility findings were made without a logical or probative basis, or whether the decision was otherwise unreasonable to the point that no reasonable tribunal could have made it. The Court was required to distinguish between the finding of a jurisdictional fact and the exercise of a discretion in administrative decision-making.
The Court's reasoning drew heavily on established principles of administrative law and migration jurisprudence. It emphasised that the assessment of whether an applicant may be treated in a particular way upon return to their country of nationality requires close and individualised consideration of their situation, focusing on the central question of a well-founded fear of persecution. The Court noted that while credibility findings are primarily the function of the decision-maker, they are susceptible to review for jurisdictional error. Such error can arise from a failure to afford procedural fairness, reaching a finding without a logical or probative basis, or unreasonableness in the "Wednesbury" sense. The Court stressed that the assessment of jurisdictional error is a case-specific inquiry requiring detailed analysis of the decision-maker's findings.
The legal issues before the Court were whether the Minister's decision was affected by jurisdictional error. This involved determining whether the decision-maker had failed to properly consider the applicant's individual circumstances, whether any adverse credibility findings were made without a logical or probative basis, or whether the decision was otherwise unreasonable to the point that no reasonable tribunal could have made it. The Court was required to distinguish between the finding of a jurisdictional fact and the exercise of a discretion in administrative decision-making.
The Court's reasoning drew heavily on established principles of administrative law and migration jurisprudence. It emphasised that the assessment of whether an applicant may be treated in a particular way upon return to their country of nationality requires close and individualised consideration of their situation, focusing on the central question of a well-founded fear of persecution. The Court noted that while credibility findings are primarily the function of the decision-maker, they are susceptible to review for jurisdictional error. Such error can arise from a failure to afford procedural fairness, reaching a finding without a logical or probative basis, or unreasonableness in the "Wednesbury" sense. The Court stressed that the assessment of jurisdictional error is a case-specific inquiry requiring detailed analysis of the decision-maker's findings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In Li, at [22], by reference to SZMDS at [39], French CJ said (internal citations omitted; emphasis added):[18]… This aspect of the case raises the question whether the decision of the MRT was unreasonable in the sense used by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that is to say so unreasonable that no reasonable tribunal could have made it. In approaching that question it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion.[18] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In SZMDS, Gummow A-CJ and Kiefel J said, at [39]: “Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. (footnotes omitted).” In the words of Gummow and Hayne JJ in S395/2002, at [73], the decision-maker is required “to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.”[19] In the same case, at [78], their Honours also instructed that (emphasis in original; internal citations omitted):The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.[19] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. The integers for who constitutes a “refugee” for the purposes of the Act are discussed by Gummow J in VBAO at [11] – [22].[20] In the same case, at [1], Gleeson CJ and Kirby J, and Gummow J at [16] – [20], discuss “threat” for the purposes of the Act.[20] VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1. Many of the relevant legal principles which guide the review of findings concerning credibility were recently summarised by the Full Court in CQG15 v Minister for Immigration and Border Protection at [36]-[44] (McKerracher, Griffiths and Rangiah JJ), thus:[21][21] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.(a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;(b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:(i) failure to afford procedural fairness;(ii) reaching a finding without a logical or probative basis;(iii) unreasonableness; and/or(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20] – [21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].
Ratio Decidendi
Legal Principle Established
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