CMG18 v Minister for Immigration - [2019] FCCA 3409

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMG18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3409

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – whether the Authority overlooked a relevant consideration or based its decision on no evidence considered – non disclosure certificate considered.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DA, 473DC, 473DD, 473GB

Cases cited:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
AYF16 v Minister for Immigration [2018] FCAFC 129
AKQ16 v Minister for Immigration & Anor [2019] FCCA 90
BSE17 v Minister for Home Affairs [2018] FCA 1926
BVD17 v Minster for Immigration [2019] HCA 34

CED16 v Minister for Immigration [2018] FCA 1451
CMH16 v Minister for Immigration & Anor [2017] FCCA 2433
CYE17 v Minister for Immigration & Anor [2019] FCCA 102
FJE17 v Minister for Immigration & Anor [2018] FCCA 3410
Minister for Immigration v BBS16 (2017) 257 FCR 111
Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v SZMTA [2019] HCA 3

MZAFZ v Minister for Immigration (2016) 243 FCR 1
MZZGE v Minister for Home Affairs [2019] FCAFC 72
MZZUG v Minister for Immigration [2015] FCA 1151
Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

Applicant:

CMG18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1354 of 2018

Judgment of:

Judge Driver

Hearing date:

19 June 2019

Date of Last Submission:

17 July 2019

Delivered at:

Sydney

Delivered on:

9 December 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Mills Oakley

ORDERS

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 15 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1354 of 2018

CMG18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister.
The applicant is a citizen of Iraq born in May 1971.[1] He first arrived in Australia, apparently at Christmas Island, in July 2013 as an unauthorised maritime arrival.[2] On 31 October 2016, the applicant applied for the visa.[3]
[1] Court Book (CB) 54
[2] CB 61, 145
[3] CB 40-78
In support of his application for the visa, the applicant raised the following matters:
a)the applicant was born in Baghdad, Iraq. In 1981, the Hussein regime deported the applicant and his family to Iran.…

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 3409
Decision Date: 9 December 2019

CaseChat Overview and Summary

The applicant, CMG18, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is of Iranian nationality, claimed to fear persecution in Iran due to their alleged involvement in political activities and their gender identity. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they would not face persecution if returned to Iran. The matter came before Judge Driver of 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 involved determining whether the delegate had properly considered all relevant aspects of the applicant's claims, including their fear of persecution based on political opinion and gender identity, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court was also required to consider whether the delegate had adequately assessed the risk of harm the applicant might face upon return to Iran.

Judge Driver found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's claims regarding their gender identity and the associated risks of persecution. The Court held that the delegate's assessment of these claims was superficial and did not engage with the specific evidence provided by the applicant. Furthermore, the Court determined that the delegate's adverse credibility findings, particularly in relation to the applicant's political activities, were not reasonably open on the evidence before them, as they had failed to properly weigh all the available information. The Court concluded that the delegate's decision was vitiated by these errors.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

Orders