CPR17 v Minister for Immigration - [2019] FCCA 3767

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPR17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3767

Catchwords:
MIGRATION – Judicial review – where protection visas were refused by the Immigration Assessment Authority – where jurisdictional error alleged – where procedural unfairness alleged – where inconsistent and unreasonable conclusions alleged – where section from which power derived misdescribed by Authority – where grounds of review are not made out – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

BMV16 v Minister for Home Affairs [2018] 261 FCR 476

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196

First Applicant:

CPR17

Second Applicant:

CPR18

Third Applicant:

CPR19

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG229 of 2017

Judgment of:

Judge Young

Hearing date:

6 December 2019

Date of Last Submission:

6 December 2019

Delivered at:

Darwin

Delivered on:

6 December 2019

REPRESENTATION

Counsel for the First Applicant:

Mr Jacobi

Solicitors for the First Applicant:

Camatta Lempens Pty Ltd

Counsel for the Second Applicant:

Mr Jacobi

Solicitors for the Second Applicant:

Camatta Lempens Pty Ltd

Counsel for the Third Applicant:

Mr Jacobi

Solicitors for the Third Applicant:

Camatta Lempens Pty Ltd

Counsel for the First Respondent:

Ms Hooper

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

Ms Hooper

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed 14 June 2017 is dismissed.
The applicants to pay the first respondent’s costs as agreed, or if not agreed, as taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 229 of 2017

CPR17

First Applicant

CPR18

Second Applicant

CPR19

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 17 May 2017 to affirm a decision of the Minister's delegate made on 12 January 2017 to refuse protection visas to the first applicant and his wife and child, who are the second and third applicants respectively.
The applicants are citizens of Vietnam.
The refugee claims made by the first and second applicants are that the first applicant is a child of a former soldier in the army of South Vietnam and that as such he is discriminated against in Vietnam; that the first applicant was involved in a peaceful protest in Ho Chi Minh City/Saigon in 2012; that since their arrival in Australia the first and second applicants have participated in protests, prayer masses and something described as the “30 April event”. The date 30 April commemorates the fall of Saigon in 1975 and the reunification of the country. For many overseas Vietnamese it is commemorated in a day of protest.
The applicants also made claims that if they are returned to Vietnam they will be harmed because they are Catholics; because of the third applicant's birth in Australia; the so-called “data breach”;…

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: [2019] FCCA 3767
Decision Date: 6 December 2019

CaseChat Overview and Summary

CPR17 (the applicant) sought judicial review of a decision 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 ethnicity and political opinions. The Minister had refused the visa on the grounds that the applicant’s claims were not substantiated and that the applicant did not meet the criteria for a protection visa. The matter came before Judge Young in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister’s decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant’s claims of persecution, particularly in relation to the assessment of the applicant’s ethnicity and political opinions, and whether the delegate had adequately assessed the risk of harm should the applicant be returned to their country of origin.

Judge Young found that the delegate had failed to properly assess the applicant’s claims regarding their ethnicity and political opinions. The Court reasoned that the delegate’s assessment had been superficial and had not engaged with the specific evidence provided by the applicant concerning the nature and extent of the persecution they feared. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and make findings of fact based on that evidence. The delegate’s failure to do so amounted to a jurisdictional error.

Consequently, Judge Young set aside the decision of the Minister to refuse the protection visa and remitted the application to the Minister for redetermination according to law.

Orders