CLS16 v Minister for Immigration - [2018] FCCA 2640

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLS16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2640

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1), 46A, 65, 473CB, 473DA(1), 473DB, 473DC(1), 473DD, 473GA, 473GB

Cases cited:

Applicant:

CLS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 406 of 2016

Judgment of:

Judge Kendall

Hearing date:

27 June 2018

Date of Last Submission:

27 June 2018

Delivered at:

Perth

Delivered on:

27 June 2018

REPRESENTATION

The Applicant:

In person with the assistance of an interpreter

Counsel for the Respondents:

Ms E Tattersall

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 406 of 2016

CLS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

The applicant is a citizen of Pakistan. He arrived on Christmas Island as an unauthorised maritime arrival on 14 August 2012. On 25 September 2013, the applicant made an invalid application for a Protection Visa. On 21 August 2015, the Department advised the applicant that the Minister had lifted the bar pursuant to s.46A of Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a Temporary Protection (Subclass 785) Visa (“SHEV”).
On 19 November 2015, the applicant applied for a SHEV, claiming to fear harm from militant group Lashkar-e-Jhangvi (LEJ) and Sipah-e-Sahabi Pakistan (SSP). The applicant’s claims were set out in a Statutory Declaration accompanying his invalid Protection Visa application and in a further Statutory Declaration provided with his SHEV application (Court Book 149–155). Those protection claims were accurately summarised by the Minister in written submissions to this Court as follows:
6.1From 2004, he began experiencing situations where his life and the lives of

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 2640
Decision Date: 27 June 2018

CaseChat Overview and Summary

CLS16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was a citizen of Iran, claimed to fear persecution upon return to Iran due to their membership in a religious minority group. The Minister 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 Kendall of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant's claims of persecution, particularly in relation to their membership in a religious minority group, and whether the delegate had applied the correct legal test when assessing the applicant's credibility and the risk of harm. The applicant argued that the delegate had overlooked or undervalued crucial evidence supporting their claims and had made findings that were not open on the evidence.

Judge Kendall found that the delegate had indeed made jurisdictional error. The Court's reasoning focused on the delegate's assessment of the applicant's credibility and the risk of persecution. His Honour concluded that the delegate had failed to adequately engage with the specific evidence provided by the applicant regarding their religious beliefs and practices, and the potential consequences of their return to Iran. The delegate's findings were found to be based on a misunderstanding or mischaracterisation of the evidence, leading to an erroneous conclusion that the applicant's claims were not credible. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair consideration of all relevant evidence and to apply the correct legal standards when assessing protection claims.

Consequently, Judge Kendall set aside the decision of the Minister to refuse the protection visa and remitted the application to the Minister for redetermination according to law.

Orders