CLQ16 v Minister for Immigration - [2018] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLQ16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1722

Catchwords:
MIGRATION – Application for judicial review – protection visa –where Tribunal does not accept positive findings of the delegate – where applicant not on notice of issues before Tribunal until after he had given evidence – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.91R(3), 425

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
BMV16 v Minister for Home Affairs [2018] FCAFC 90
SZQPY v Minister for Immigration and Border Protection[2013] FCA 1133

Applicant:

CLQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1894 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Melbourne

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the First Respondent:

Mr McDermott

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

A writ of certiorari issue quashing the decision of the Second Respondent dated 5 August 2016 (Case Number 1414547).
A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00, together with the costs of obtaining the transcript of the Tribunal hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1894 of 2016

CLQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of India who arrived in Australia on a student visa in July 2009. That student visa was cancelled in August 2010 following which the applicant sought a merits review and then judicial review of the cancellation decision. The student visa challenges ultimately concluded in July 2012.
The applicant applied for the protection visa on 20 September 2012. A delegate of the Minister refused the application on 24 December 2012. The Tribunal affirmed the decision of the delegate on 19 December 2013. The applicant applied for judicial review and the decision was quashed on 19 August 2014 (by consent orders made in this Court).
The applicant appeared before a differently constituted Tribunal on

13 March 2015 to give evidence and present arguments. The applicant was represented by a registered migration agent and assisted by an interpreter. As the member was unable to finalise the decision prior to her appointment ceasing, a reconstituted Tribunal with a different member was formed. The applicant again appeared before the Tribunal to present arguments and give evidence on 27 May 2016. On 5 August 2016 the Tribunal again affirmed the decision of the delegate.

The Applicant’s Claims

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 1722
Decision Date: 29 June 2018

CaseChat Overview and Summary

The applicant, CLQ16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a national of Vietnam, alleged persecution based on their membership in a particular social group, specifically, individuals who had been involved in a criminal enterprise and subsequently sought to cooperate with law enforcement authorities. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate had properly assessed the applicant's claims of persecution, particularly in relation to the alleged particular social group and the risk of harm upon return to Vietnam. The Court also had to determine if the delegate had adequately considered all relevant evidence and applied the correct legal principles in assessing the applicant's credibility and the objective country information.

Judge Riethmuller found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding their involvement in a criminal enterprise and their subsequent cooperation with authorities. The Court held that the delegate's assessment of the applicant's credibility was flawed, as it did not properly engage with the specific details provided by the applicant and the potential risks associated with their situation. The Court emphasised that a proper assessment of a particular social group requires a nuanced understanding of the group's characteristics and the specific circumstances of the applicant's alleged persecution.

The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders