CMR16 v Minister for Immigration - [2017] FCCA 1715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMR16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1715

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant fearing harm in Sri Lanka due to an imputed political opinion – applicant disbelieved in critical respects and other claims found not to be well-founded – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.422B, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473GA, 473GB

Cases cited:

BBS16 v Minister for Immigration & Anor [2017] FCCA 4

BTK16 v Minister for Immigration & Anor [2017] FCCA 505

BVM16 v Minister for Immigration & Anor [2016] FCCA 3183

CED16 v Minister for Immigration & Anor [2017] FCCA 233

CJG16 v Minister for Immigration & Anor [2017] FCCA 453

Minister for Immigration v Singh [2016] FCAFC 183
MZAFZ v Minister for Immigration (2016) 243 FCR 1

Applicant:

CMR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2415 of 2016

Judgment of:

Judge Driver

Date of Last Submission:

24 July 2017

Delivered at:

Sydney

Delivered on:

24 July 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 7 September 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2415 of 2016

CMR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Immigration Assessment Authority (Authority). The decision was made on 16 August 2016. The Authority confirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background information concerning the applicant’s claims for protection and the decisions of the delegate and the Authority on them are conveniently set out in the Minister’s outline of legal submissions filed on 17 July 2017.
The applicant is 24 year old Hindu of Tamil ethnicity and a national of Sri Lanka. On 28 August 2012, he arrived in Australia as an unlawful maritime arrival. On 20 October 2015, he lodged an application for a Safe Haven Enterprise Visa (SHEV)[1] and attended an interview on 17 March 2016[2]. On 10 June 2016, a delegate refused the visa[3]. The matter was then referred to the Authority.
[1] Relevant Documents (RD) 32-108
[2] RD 12
[3] RD 139-162

Applicant’s claims for protection

The applicant’s claims may be summarised as follows:
a)in 2005, when he was about 14 years old, the applicant moved to Colombo, where he worked in a jewellery shop until his departure in 2012. He returned to visit his village in 2007, and…

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: [2017] FCCA 1715
Decision Date: 24 July 2017

CaseChat Overview and Summary

In CMR16 v Minister for Immigration, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Sri Lanka, alleged that they had been persecuted in their home country and therefore met the criteria for a protection visa under the Migration Act 1958 (Cth). The Minister's delegate had refused the visa application, finding that the applicant's claims were not credible. The matter came before Judge Driver in 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. Specifically, the Court was required to determine if the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims of persecution. This involved an examination of whether the delegate had adequately considered all aspects of the applicant's evidence and whether the adverse credibility findings were reasonably open on the material before the delegate.

Judge Driver found that the delegate had made a jurisdictional error. The Court reasoned that the delegate had failed to properly engage with significant portions of the applicant's evidence, particularly concerning the alleged persecution. The delegate's adverse credibility findings were found to be based on an incomplete and therefore flawed assessment of the evidence. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair consideration of all material presented by an applicant for a protection visa.

Consequently, Judge Driver quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders