CNF15 v Minister for Immigration - [2018] FCCA 2416

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNF15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2416

Catchwords:
MIGRATION – Protection visa – applicants’ grounds discursive – unparticularised – applicants failed to discharge onus of making out their claims before the tribunal – applicants’ allegations of bias not made out – tribunal complied with statutory obligations – considered evidence before it – had appropriate regard to country information – application dismissed.

Legislation:

Migration Act 1958, ss 36(2)(a), 36(2)(aa), 36(2A), 91R, 422B

Cases cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

First Applicant:

CNF15

Second Applicant:

CNG15

Third Applicant:

CNH15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2635 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

15 August 2018

Date of Last Submission:

15 August 2018

Delivered at:

Melbourne

Delivered on:

15 August 2018

REPRESENTATION

First Applicant:

In person

Solicitors for the First Applicant:

None

Second Applicant:

In person

Solicitors for the Second Applicant:

None

Third Applicant:

In person

Solicitors for the Third Applicant:

None

Counsel for the First Respondent:

Mr T Smyth

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The proceeding filed on 27 November 2015 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $7 328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2635 of 2015

CNF15

First Applicant

And

CNG15

Second Applicant

And

CNH15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

This application for judicial review of the decision of the Administrative Appeals Tribunal made 9 November 2015 was commenced on 27 November 2015. The tribunal affirmed a decision not to grant the applicants a protection visa they sought.
In this application the applicants relied on grounds that were discursive and, in places, ill-directed. Doing the best he could, and in conformity with his obligations as a model litigant, the minister distilled the applicant’s grounds into six discrete propositions that the minster submitted represented the applicant’s real contentions in this case. They were as follows –
a)the tribunal failed to afford the applicants natural justice;
b)the tribunal’s reasoning in paragraphs 51 and 59 of its reasons;
c)the tribunal failed to consider the applicants’ evidence about the treatment by Chinese authorities of christians;
d)the tribunal erred in its treatment…

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.

Continue reading CNF15 v Minister for Immigration

Details

AGLC: CNF15 v Minister for Immigration [2018] FCCA 2416
Case: [2018] FCCA 2416
Decision Date: 15 August 2018

CaseChat Overview and Summary

The applicant, CNF15, sought judicial review of a decision by the Minister for Immigration to refuse their application for a protection visa. The dispute concerned whether the Administrative Appeals Tribunal (AAT) had erred in law when it affirmed the Minister's decision. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the AAT had failed to adequately consider the applicant's claims, whether the applicant had discharged the onus of proving their claims, and whether the AAT had demonstrated bias against the applicant. The court was also required to determine if the AAT had complied with its statutory obligations in considering the evidence before it and the relevant country information.

His Honour Judge Wilson found that the applicant's grounds of review were largely discursive and unparticularised, failing to identify specific errors of law. The court held that the applicant had not discharged the onus of establishing their claims before the AAT. Furthermore, the court concluded that the allegations of bias were not made out, and that the AAT had complied with its statutory obligations by considering the evidence presented and giving appropriate regard to country information.

The application for judicial review was dismissed.

Orders