COVATU v Minister for Immigration - [2015] FCCA 746

FEDERAL CIRCUIT COURT OF AUSTRALIA

COVATU v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 746

Catchwords:
MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – applicant detained by NSW Police – unlawful non-citizen – refusal of delegate to grant a bridging visa – whether the Tribunal misconstrued or misapplied ss.194 and 195 of the Migration Act 1958 – proper construction of words “detain” and “detains” – obligations imposed on a detaining officer to ensure detainee is aware of certain issues.

Legislation:

Migration Act 1958 (Cth), ss.5, 13, 14, 47A, 48, 65, 189, 194, 195, 359A, 476,

Migration Regulations 1994 (Cth), cl.050.212 of sch.2

Applicant:

USAIA COVATU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 384 of 2015

Judgment of:

Judge Smith

Hearing date:

11 March 2015

Date of Last Submission:

11 March 2015

Delivered at:

Sydney

Delivered on:

1 April 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Mr G. Kennett SC

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application be dismissed.
The injunction granted on 6 March 2015 is dissolved.
The applicant pay the first respondent’s costs fixed in the amount of $11,250.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 384 of 2015

USAIA COVATU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Fiji who arrived in Australia on 27 October 2013 on a Tourist visa that was valid until 27 January 2014. A week before the expiry of his visa, the applicant applied for a protection visa. He was granted a bridging visa on the basis of that application. On 17 June 2014 a delegate of the first respondent (“Minister”) made a decision to refuse the applicant a protection visa. The applicant did not seek review of that decision and, as a consequence, his bridging visa ceased on 24 July 2014. He became an unlawful non-citizen within the meaning…

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: [2015] FCCA 746
Decision Date: 1 April 2015

CaseChat Overview and Summary

The applicant, Mr. Covatu, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether the Minister's delegate had properly assessed the risk of harm Mr. Covatu would face if returned to his country of origin, specifically concerning allegations of persecution by a non-state actor. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's assessment of the risk of persecution was affected by an error of law. This involved determining whether the delegate had failed to consider relevant information, had taken into account irrelevant considerations, or had applied the correct legal test for assessing the risk of harm under the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Smith found that the delegate had made a jurisdictional error by failing to adequately consider the evidence relating to the alleged persecution by the non-state actor. The Court reasoned that the delegate's assessment had been unduly narrow, focusing on the state's inability or unwillingness to protect Mr. Covatu rather than the broader question of whether he would suffer persecution. The legal principle applied was that a delegate must undertake a comprehensive assessment of all relevant claims and evidence to determine if a real chance of persecution exists, even if the persecutor is a non-state actor.

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

Orders