CMF16 v Minister for Immigration - [2019] FCCA 1374

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMF16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1374

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a refugee for the purposes of the Refugees Convention criterion or that the applicant faced a real chance of ‘significant harm’ – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.91R

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002

Applicant:

CMF16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2401 of 2016

Judgment of:

Judge Dowdy

Hearing date:

7 May 2019

Delivered at:

Sydney

Delivered on:

7 May 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms K. Evans

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 6 September 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2401 of 2016

CMF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a male citizen of Fiji of Indian ethnicity aged 41 years, having been on 13 July 1977.
By Application filed in this Court on 6 September 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 February 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background and Claims for Protection

The Applicant arrived in Australia on a Visitor (Class TV) (Subclass 600) visa (Visitor visa) on 4 October 2014 and lodged his Protection visa application on 13 October 2014.
In an undated written statement made by the Applicant in support of, and which formed part of, his Protection visa application, he claimed that he believed “that Australia is the best country in the world today” and that since arriving in Australia he had “noted many vast differences in the running of the Australian Government and its Policies” and the “present Fijian Military Government”.
He further…

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: [2019] FCCA 1374
Decision Date: 7 May 2019

CaseChat Overview and Summary

The applicant, CMF16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Immigration's refusal to grant a Protection visa. The AAT had not been satisfied that CMF16 met the definition of a refugee under the Refugees Convention or that they faced a real chance of suffering 'significant harm'.

The central legal issue before the court was whether the AAT had committed any jurisdictional error in its assessment of CMF16's claims. Specifically, the court was required to determine if the AAT's findings regarding the refugee convention criterion and the risk of significant harm were legally sound and free from error.

Judge Dowdy found no jurisdictional error in the AAT's decision. The court reasoned that the AAT had properly considered the evidence before it and applied the relevant legal principles in reaching its conclusions. The AAT's assessment of the applicant's credibility and the assessment of the risk of harm were within its purview as a fact-finding tribunal. Consequently, the application for judicial review was dismissed.

Orders