CPP17 v Minister for Immigration - [2019] FCCA 3593

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3593

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

First Applicant:

CPP17

Second Applicant:

CPQ17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 230 of 2017

Judgment of:

Judge Vasta

Hearing date:

28 October 2019

Date of Last Submission:

28 October 2019

Delivered at:

Adelaide

Delivered on:

28 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Rutherford

Solicitors for the Applicant:

CAMATTA LEMPENS

Counsel for the First Respondent:

Ms Butler

Solicitors for the First Respondent:

AUSTRALIAN GOVERNMENT SOLICITOR

ORDERS

The application filed 14 June 2017 be dismissed.
The Applicants pay the respondent’s costs fixed in the sum of six thousand nine hundred dollars ($6,900.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 230 of 2017

CPP17

First Applicant

CPQ17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 22 May 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, CPP17, and her daughter, CPQ17, protection visas. By application filed on 14 June 2017, the Applicant has asked this Court to review that decision.
The background to the matter is that the Applicant and her child are citizens of Vietnam. They left Vietnam on 29 May 2013 and arrived in Australia on 18 June 2013.
The IAA looked at the information that it had before it. The Applicant had been interviewed soon after arrival in what is commonly called the arrival interview. That occurred in July and August 2013. In that interview, she had told the authorities that she was of the Catholic faith and Kinh ethnicity. She said that she had lived in her village since birth and was a farmer, first on her parent’s farm, and then on her own and she cultivated peppercorns.
She said that she had completed 12 years of schooling and, in 2012, commenced a pharmacist course at the Hong Bang International University but had not completed that course. She had told the authorities that she had been married to a man who was born in 1963 and they had a son who was born in September 1994 and that that son lives with her parents.
She told the authorities that she remarried in 1998 and her second husband was born in 1951. They had a daughter who was born in February 2009, who is the Second Applicant. The Applicant said that she and the husband separated in 2012 but remained living under the same roof until she left Vietnam.
In the arrival interview, she spoke of difficulties she had raising her children. She…

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.

Continue reading CPP17 v Minister for Immigration

Details

AGLC: CPP17 v Minister for Immigration [2019] FCCA 3593
Case: [2019] FCCA 3593
Decision Date: 28 October 2019

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Vasta considered the application of CPP17, who sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CPP17 a visa, a decision CPP17 alleged was unlawful.

The central legal issue before the Court was whether the delegate of the Minister had properly considered all relevant information when assessing CPP17's visa application, specifically in relation to the character provisions of the *Migration Act 1958* (Cth). The Court was required to determine if the delegate's assessment of CPP17's criminal history and its implications for the character test had been vitiated by an error of law.

Judge Vasta reasoned that the delegate had failed to adequately consider the evidence presented by CPP17 regarding rehabilitation and the context of their past offending. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all material before them and cannot simply disregard relevant information. The delegate's failure to engage with the specific submissions made by CPP17 about their changed circumstances meant the decision was not open to be made as it was.

Consequently, Judge Vasta found the delegate's decision to refuse the visa to be affected by jurisdictional error and set aside the decision. The matter was remitted to the Minister for redetermination according to law.

Orders