CMO15 v Minister for Immigration - [2018] FCCA 3554

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMO15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3554

Catchwords:
MIGRATION – Protection – whether the tribunal applied correct test – it did – application for judicial review failed.

Legislation:

Migration Act1958, ss.36(2)(a), 36(2)(aa), 36(2B)(c)

Cases cited:
AVU15 v Minister for Immigration and Border Protection [2017] FCA 608
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
SZSPT vMinister for Immigration and Border Protection [2014] FCA 1245
WAEE vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant:

CMO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2612 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

25 September 2018

Date of Last Submission:

25 September 2018

Delivered at:

Melbourne

Delivered on:

5 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Aleksov

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the First Respondent:

Ms N Campbell

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed 26 November 2015 as amended on 22 August 2018 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2612 of 2015

CMO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application for judicial review made on 26 November 2015 concerned a decision of the Administrative Appeals Tribunal given on 10 November 2015 affirming a decision by the minister’s delegate to refuse to grant the applicant the protection visa he sought.
In his amended application for judicial review, the applicant contended that the –
a)decision of the tribunal was affected by irrationality, illogicality or legal unreasonableness;
b)tribunal applied the wrong test; and
c)tribunal failed to consider, lawfully, the applicant’s complementary protection claims.
The minister contended that the tribunal made no error and requested me to dismiss this proceeding.

Synopsis

For the reasons that follow, in my judgment this application for judicial review failed with the consequence that I dismiss this proceeding and order the applicant to pay the minister’s costs.

Relevant factual narration

The applicant, a citizen of Afghanistan, arrived in Australia on 8 June 2012 as an unauthorised maritime arrival. The department interviewed him on 19 July 2012. On 17 September 2012 the applicant applied for a protection visa to which he attached a statutory declaration. He also provided a form 956 indicating that he had appointed a representative. A delegate…

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 3554
Decision Date: 5 December 2018

CaseChat Overview and Summary

The applicant, CMO15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's assessment of CMO15's claim for protection. The matter was heard by His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Administrative Appeals Tribunal (AAT) had applied the correct legal test when assessing CMO15's protection claim. Specifically, the court was required to determine if the AAT's application of the relevant legislative provisions and case law was legally sound.

His Honour Judge Wilson found that the AAT had indeed applied the correct test in its assessment of CMO15's protection claim. The court's reasoning focused on the Tribunal's proper understanding and application of the statutory criteria for protection visas. Consequently, the application for judicial review was dismissed.

Orders