CNV17 v Minister for Immigration - [2018] FCCA 2408

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2408

Catchwords:
MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA

Articles and other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)
International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976)
Refugees Convention Act 2012 (Republic of Nauru)
United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014)

Cases cited:

AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106

ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

CRI026 v The Republic of Nauru (2018) 355 ALR 216

CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14
DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZANX v Minister for Immigration & Border Protection [2017] FCA 307
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419

SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94

Applicant:

CNV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 307 of 2017

Judgment of:

Judge Smith

Hearing date:

2 May 2018

Date of Last Submission:

14 June 2018

Delivered at:

Sydney (Perth by video link)

Delivered on:

7 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr N Draper, Granich Partners

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 307 of 2017

CNV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 16 May 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.

Background

The applicant is a Hazara Shi’a Muslim who comes from the Uruzgan province of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 14 August 2012.
On 2 September 2016, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A…

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 2408
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, CNV17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister had properly considered all the relevant evidence and applied the correct legal principles in assessing the applicant's claims for protection. Specifically, the Court considered whether the delegate had failed to adequately assess the risk of harm to the applicant in their country of origin, and whether the delegate had properly applied the non-refoulement obligations under international law.

Judge Smith found that the delegate had made a jurisdictional error. The reasoning was that the delegate had failed to properly consider crucial evidence relating to the applicant's fear of persecution, thereby failing to undertake a comprehensive assessment of the real risks faced by the applicant. The Court applied the principles established in *Minister for Immigration and Border Protection v SZSSJ* [2016] HCA 20, which emphasise the importance of a thorough and evidence-based assessment of protection claims. The Court held that the delegate's failure to engage with significant aspects of the applicant's evidence meant that the decision was not open to be made under the relevant legislative provisions.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders