CML17 v Minister for Immigration - [2021] FCCA 264

FEDERAL CIRCUIT COURT OF AUSTRALIA

CML17 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 264

Catchwords:
MIGRATION – Protection visa – whether finding that reasonable for applicant to relocate to location in home country unreasonable, irrational or illogical – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5J(1)(c), 36(2B), 36(2)(aa), 473CA, 473CB, 473DC, 473DD, 473DD(a) & (b)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091
MZANX v Minister for Immigration and Border Protection [2017] FCA 307

CQI16 v Minister for Immigration and Border Protection [2019] FCA 718
FCS17 v Minister for Immigration and Border Protection [2019] FCCA 1024
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707

Applicant:

CML17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 217 of 2017

Judgment of:

Judge Heffernan

Hearing date:

3 June 2019

Date of Last Submission:

12 March 2020

Delivered at:

Adelaide

Delivered on:

16 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr P Barnes

Solicitors for the Applicant:

MSM Legal

Counsel for the Respondents:

Mr T Ellison

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 217 of 2017

CML17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 19 May 2017. That decision affirmed the decision of the then Minister for Immigration and Border Protection (‘the Minister’), made 20 September 2016, refusing the applicant a Temporary Protection Visa (subclass 785) (‘the visa’).
The application proceeded by way of the Third Amended Application filed on 24 May 2019 which contained three grounds. In summary, grounds 1 and 2 allege that it was illogical, irrational and unreasonable for the IAA to find that the applicant faced a real risk of significant harm if returned to his home town but that he should be relocated pursuant to s 36(2B) of the Migration Act 1958 (Cth) (‘the Act’) as he was found to not face a real chance of persecution in all areas of the receiving country under s 5J(1)(c) of the Act. After submissions and on the joint application of counsel, these proceedings were adjourned pending the outcome of the decision of the High Court in the matter of BVD17 v Minister for Immigration and Border Protection.[1] Following publication of that decision, the parties indicated that they did not seek to make any further submissions in this matter.
[1] (2019) 93 ALJR 1091.
The third ground…

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.

Keep reading for free

Create a free CaseChat account to read CML17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FCCA 264
Decision Date: 16 February 2021

CaseChat Overview and Summary

The applicant, CML17, sought judicial review of a decision by the Minister for Immigration concerning their application for a protection visa. The central dispute revolved around whether the delegate's finding that it was reasonable for CML17 to relocate to a different location within their home country was unreasonable, irrational, or illogical. The matter was heard by Judge Heffernan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was to determine if the delegate's assessment of the applicant's ability to relocate within their country of origin was so unreasonable that it could be characterised as irrational or illogical, thereby vitiating the decision. This required an examination of the evidence before the delegate and the application of the legal standard for reasonableness in administrative decision-making.

Judge Heffernan reasoned that the delegate had adequately considered the evidence presented by the applicant regarding the risks associated with relocation. The court found that the delegate's conclusion that relocation was a reasonable option was open to them on the material before them and did not fall into the category of being unreasonable, irrational, or illogical. The application was therefore dismissed.

The orders of the court were that the application be dismissed and that the applicant pay the costs of the first respondent in the amount of $7,206.00.

Orders

Orders of the court

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.