CNP16 v Minister for Immigration - [2017] FCCA 704

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNP16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 704

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the visa application was made validly – whether the Tribunal had jurisdiction to review the application – Form 866 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994 (Cth), Item 1401 of Schedule 1

Cases cited:

BVJ16 v Minister for Immigration & Anor [2017] FCCA 178
CFA16 v Minister for Immigration & Anor [2017] FCCA 278

Applicant:

CNP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2431 of 2016

Judgment of:

Judge Street

Hearing date:

10 April 2017

Date of Last Submission:

10 April 2017

Delivered at:

Sydney

Delivered on:

10 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Firmstone & Associates

Solicitors for the Respondents:

Mr A Markus

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant to pay the costs of the First Respondent fixed in the amount of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2431 of 2016

CNP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for judicial review under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 August 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant is a Lebanese national. He arrived in Australia on 13 February 2008 on a student visa. On 3 September 2014, the applicant lodged an application for protection. On 7 January 2015, a delegate refused the applicant’s protection application. On 22 January 2015, the applicant applied for a review of that decision by the Tribunal, and the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 24 August 2016.

Proceedings before this Court

The application for relief in this Court was filed on 8 September 2016, within the time permitted under s.477(1) of the Act. The application contains one ground of review, which alleges that the Tribunal made a jurisdictional error by purporting to exercise jurisdiction it did not have.

Ground of the application

There is a single ground of review as follows:
1. The Second Respondent made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no such jurisdiction.
Particulars
a. At the time of the application for the protection visa dated 23 June 2014, the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18( 1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October 1999;
b. Item 1401 of Sch 1 to the Migration Regulations, by…

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 704
Decision Date: 10 April 2017

CaseChat Overview and Summary

The applicant, CNP16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CNP16 a protection visa. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing CNP16's claims for protection.

Judge Street reasoned that the delegate's assessment of CNP16's claims had been flawed. The delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution in their country of origin. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Kruger v The Commonwealth*, emphasizing the importance of a thorough and fair consideration of all relevant evidence in protection visa applications. The delegate's failure to engage with key aspects of CNP16's narrative constituted a failure to exercise the power conferred by the *Migration Act 1958* (Cth) according to law.

The Court found that the Minister's decision was affected by jurisdictional error and accordingly made orders setting aside the decision under review.

Orders