Con15 v Minister for Immigration - [2016] FCCA 2283

FEDERAL CIRCUIT COURT OF AUSTRALIA

CON15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2283

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:
Minister for Immigration v SZMOK (2009) 257 ALR 427
Minister for Immigration v SZNPG (2010) 115 ALD 303
Minister for Immigration v SZNSP (2010) 184 FCR 485

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZSFF v Minister for Immigration & Anor [2013] FCCA 1884
SZSPT v Minister for Immigration [2014] FCA 1245

VBAP of 2002 v Minister for Immigration [2005] FCA 965

Applicant:

CON15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3277 of 2015

Judgment of:

Judge Driver

Hearing date:

1 September 2016

Delivered at:

Sydney

Delivered on:

1 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Wong of Mills Oakley

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3277 of 2015

CON15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal). The decision was made on 16 November 2015. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s protection claims, and the decision of the Tribunal on them, are set out in the minister’s outline of legal submissions, filed on 23 August 2016.

Background

The applicant is a citizen of Sri Lanka who applied for a protection (class XA) visa on 6 June 2013.[1] In a statement accompanying his protection visa application, the applicant claimed to fear harm because of his brother-in-law’s association with the LTTE and paramilitary groups (the Karuna and Pillayan groups). The applicant also claimed to fear harm for reasons of his Tamil ethnicity, illegal departure from Sri Lanka and application for asylum in Australia. He claimed that his brother-in-law was killed by members of the Karuna group after they accused him of misappropriating funds when he left the group to join the Pillayan group. Approximately eight months later the applicant’s sister was also murdered and the applicant was forced to go into hiding for the next five years until he departed for Australia. After arriving in Australia, the CID allegedly contacted his wife…

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: [2016] FCCA 2283
Decision Date: 1 September 2016

CaseChat Overview and Summary

In *Con15 v Minister for Immigration*, the applicant, Con15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute centred on whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the evidence presented by the applicant regarding the alleged persecution, and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Driver J's reasoning focused on the principles of administrative decision-making and the correct application of the relevant provisions of the *Migration Act*. The Court examined the delegate's assessment of the applicant's credibility, noting that adverse credibility findings must be based on demonstrable inconsistencies or implausibilities in the applicant's account, and that the delegate must provide clear reasons for such findings. The Court found that the delegate had failed to adequately explain the basis for rejecting key aspects of the applicant's testimony, thereby rendering the decision to refuse the protection visa legally unreasonable.

Consequently, Driver J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders