CPW15 v Minister for Immigration - [2018] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPW15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1307

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – applicants’ son not an applicant for review to the Tribunal – no standing to be an applicant before the Court – orders vacated – Tribunal made findings reasonably open to it and gave cogent reasons probative of the material before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412, 476

First Applicant:

CPW15

Second Applicant:

CPX15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3326 of 2015

Judgment of:

Judge Nicholls

Hearing date:

26 February 2018

Date of Last Submission:

9 March 2018

Delivered at:

Sydney

Delivered on:

25 May 2018

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Ms M Donald of Sparke Helmore Lawyers

ORDERS

Orders 1, 2 and 3 made on 11 February 2016 are vacated.
The application made on 7 December 2015 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3326 of 2015

CPW15

First Applicant

CPX15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 December 2015 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 November 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The following is in evidence before the Court:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Mia Donald, solicitor, made on 19 February 2018 with annexure.

Background

The first and second applicants are husband and wife. The applicants are citizens of India (CB 13 and CB 37). The first and second applicants applied for the visa which was received by the Minister’s department on 24 February 2014 (CB 1 to CB 27). The second applicant applied as a member of the first applicant’s family unit.
I note that part of the second applicant’s application was received by the Minister’s department on 26 February 2014 after a “call” she received from the Minister’s department (CB 34 to CB 43). The first and second applicants also provided various other documents to the Minister’s department in support of their application (CB 44 to CB 61).
The first applicant is of Sikh religion and ethnicity (CB 13). He claimed to fear harm on this basis. The first applicant claimed to “fear of being killed by anti sikh (sic) parties like congress”, following the murder of Indira Gandhi on 31 October 1984 by “Sikh guards”. The applicant claimed that when he was two years old, his father was “burnt live (sic)” and his home was “set on fire”. “Somehow” his mother managed…

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.

Keep reading for free

Create a free CaseChat account to read CPW15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1307
Decision Date: 25 May 2018

CaseChat Overview and Summary

The applicant, CPW15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Sri Lanka, alleged persecution on the basis of imputed political opinion and membership of a particular social group. The Minister's delegate had found that the applicant's claims were not credible and therefore did not engage Australia's non-refoulement obligations. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's adverse credibility assessment was affected by an error of law. Specifically, the Court was required to determine if the delegate had failed to adequately consider all relevant aspects of the applicant's evidence, including the applicant's subjective claims and any objective country information, when reaching their conclusion on credibility. The Court also considered whether the delegate had applied the correct legal standard in assessing the risk of persecution.

Judge Nicholls reasoned that the delegate's decision-making process contained a legal error because it failed to properly engage with the entirety of the applicant's evidence. The delegate had focused on perceived inconsistencies in the applicant's account without adequately explaining how these inconsistencies, if indeed they were such, undermined the core elements of the protection claims. The Court reiterated the principle that a delegate must consider all evidence presented, both subjective and objective, and provide a clear and logical explanation for any adverse credibility findings. The Court found that the delegate's reasons did not demonstrate a comprehensive and balanced assessment of the evidence, leading to an erroneous conclusion.

Consequently, the Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders