CMO17 v Minister for Immigration - [2018] FCCA 1888

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMO17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1888

Catchwords:

MIGRATION –– Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable.

HIGH COURT AND FEDERAL COURT – Federal Circuit Court – Procedure – Evidence – Other matters – admissibility of evidence not before decision maker on application for judicial review.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5LA, 65, 36(2)(a), 473CC(1), 473EA

Migration Regulations 1994 (Cth), 1.15AA€

Cases cited:

Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536

DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALD 288
McCormack v Deputy Commissioner of Taxation Large Business & International (2001) 114 FCR 574

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87
Waterford v Commonwealth (1987) 163 CLR 54

Applicant:

CMO17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 537 of 2017

Judgment of:

Judge Jarrett

Hearing date:

23 March 2018

Date of Last Submission:

23 March 2018

Delivered at:

Brisbane

Delivered on:

12 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Boccabella

Solicitors for the Applicant:

Fisher Dore Lawyers

Counsel for the First Respondent:

Ms Forder

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 8 June, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 537 of 2017

CMO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the second respondent given on 12 May, 2017 affirming a decision by a delegate of the first respondent to refuse to grant the applicant a Temporary Protection (subclass 785) visa.
The applicant argues that the second respondent’s decision was legally unreasonable because no reasonable decision-maker in the position of the second respondent could have concluded that the applicant was not at a real chance of serious harm or a real risk of significant harm should he be returned to Afghanistan. Connected with this argument is an application by the applicant for this Court to receive further material about events which have occurred in Afghanistan after the second respondent’s decision so as to show that what the second respondent thought was a remote risk of harm to people in the applicant’s position, has in fact come to pass. Further, he argues that the second respondent did not give proper genuine and realistic consideration to the applicant’s case and therefore, to the extent that it exercised the power under s.65 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 1888
Decision Date: 12 July 2018

CaseChat Overview and Summary

CMO17 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (the Authority) to affirm the refusal of the applicant's protection visa application. The applicant contended that the Authority's decision was irrational, illogical, or unreasonable.

The primary legal issue before the Federal Circuit Court was whether the Authority's decision was vitiated by irrationality, illogicality, or unreasonableness. A secondary issue concerned the admissibility of evidence that was not before the original decision-maker when determining the application for judicial review.

Judge Jarrett found that the Authority's decision was not irrational, illogical, or unreasonable. The Court applied the principles of administrative law, focusing on whether the Authority's reasoning process was demonstrably flawed. The Court held that evidence not before the original decision-maker is generally not admissible on an application for judicial review, as the review is confined to the legality of the decision as it was made.

The application for judicial review was dismissed.

Orders