COR17 v Minister for Immigration - [2018] FCCA 772

FEDERAL CIRCUIT COURT OF AUSTRALIA

COR17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 772

Catchwords:
MIGRATION – Safe haven enterprise (subclass 790) visa – application for review of a decision of the Immigration Assessment Authority – Part 7AA of the Migration Act 1958 considered – where applicant failed to provide particulars to grounds of application – where applicant sought merits review – allegations that applicant was not permitted to advance his case before the IAA – no substance in assertion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 46A, 473CA, 473DA

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

Craig v State of South Australia (1995) 184 CLR 163

CSR16 v Minister for Immigration and Border Protection (2017) 324 FLR 364
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

COR17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 317 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Melbourne

Delivered on:

21 March 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed on 13 June 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 317 of 2017

COR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

On 8 February 2018, I ordered –
a)the order for the final hearing of this proceeding fixed for 23 April 2021 be vacated;
b)this proceeding go forward under the show cause procedure set out in r.44.12 of the Federal Circuit Court Rules; and
c)submissions from either party be filed and served seven days prior to today’s hearing.
The minister filed and served submissions dated 13 March 2018. The applicant did not file any submissions in relation to the show cause application, nor did he file an amended application in accordance with the orders of Registrar Stanley made 30 August 2017.
Both parties agreed to this proceeding going forward as a show cause hearing when the case was called over on 8 February 2018.
If satisfied that the applicant has not raised an arguable case for the relief he seeks in this proceeding under r.44.12 of the Federal Circuit Court Rules the court may,…

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 772
Decision Date: 21 March 2018

CaseChat Overview and Summary

COR17 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Circuit Court.

The primary legal issue before His Honour Judge Wilson was whether the Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the court was required to determine if the Tribunal had properly considered the evidence before it, applied the correct legal tests in assessing the applicant's fear of persecution and their membership of a particular social group, and whether the Tribunal's findings were supported by the evidence. The applicant argued that the Tribunal had failed to adequately assess the risk of harm they faced and had misinterpreted the criteria for establishing membership of a particular social group.

His Honour Judge Wilson found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claims. The court reasoned that the Tribunal had failed to properly engage with the evidence presented by the applicant regarding the specific nature of the persecution they feared and the reasons for their membership in the alleged particular social group. The Tribunal's decision was found to be based on an incomplete and flawed understanding of the applicant's circumstances, leading to an erroneous conclusion. The court applied principles of administrative law concerning the proper construction and application of the Migration Act 1958 (Cth) and the assessment of protection visa claims.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders