CQG16 v Minister for Immigration - [2017] FCCA 2936

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQG16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2936

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – temporary protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 36, 65, 473CA, 473CC

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350

Applicant:

CQG16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1990 of 2016

Judgment of:

Judge Hartnett

Hearing date:

9 October 2017

Delivered at:

Melbourne

Delivered on:

29 November 2017

REPRESENTATION

Counsel for the Applicant:

Ms Batten

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Mills Oakley

ORDERS

The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1990 of 2016

CQG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced on 16 September 2016 upon the Applicant making an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 12 August 2016. The authority was constituted by reviewer Mr Fraser Syme.
The Applicant proceeded on the hearing with an amended application filed on 4 September 2017. By that amended application, the Applicant sought an order that the decision of the Authority be quashed; that a writ of mandamus issue directed to the Authority requiring it to determine the Applicant’s application according to law; and that injunctive relief be provided restraining the Minister of Immigration and Border Protection (‘the Minister’) by himself or by his Department, officers, delegates or agents, from ‘making the future decision or taking the other action the subject of the proceedings’. The Applicant also sought costs.
The grounds of application are as follows:-
“1. The Authority could not lawfully have reached the state of satisfaction it purported to reach because the “state of satisfaction” was infected by erroneous findings and deficient factual material.
2. The Second Respondent erred by failing to consider evidence before it that was relevant and cogent and was corroborative of the Applicant’s claims.
Particulars:
The Second Respondent did not deal with, consider, weigh or assess the country information in relation to:
a) how a person obtains a National Identity Card; or
b) how the identity of a person charged under the Immigrants and Emigrants Act is established; or
c) how the absence of family members in Sri Lanka can affect verifying a person’s identity and the period of detention.
3. The…

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: [2017] FCCA 2936
Decision Date: 29 November 2017

CaseChat Overview and Summary

The applicant, CQG16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had failed to consider relevant information when assessing the applicant's claims for protection. Specifically, the applicant argued that the delegate overlooked or failed to give sufficient weight to certain evidence relating to past persecution and the risk of future persecution should the applicant be returned to their country of origin. The Court was required to determine if this alleged failure constituted an error of law, rendering the delegate's decision invalid.

Judge Hartnett found that the delegate's decision-making process did not adequately address all the material before them. The Court applied the principles of administrative law, including the duty to consider all relevant evidence and the prohibition against taking irrelevant considerations into account. His Honour concluded that the delegate had failed to properly consider crucial aspects of the applicant's claim, thereby breaching the requirements of procedural fairness. Consequently, the delegate's decision was found to be affected by an error of law.

The Court ordered that the decision of the Minister's delegate be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders