CQI16 v Minister for Immigration - [2018] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQI16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3178

Catchwords:
MIGRATION – Visa – protection visa – whether Immigration Assessment Authority asked itself the wrong question – real chance of persecution – whether decision unreasonable.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(a) & (aa) and 473DD(b)

Cases cited:

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Applicant:

CQI16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 296 of 2016

Judgment of:

Judge Heffernan

Hearing date:

7 June 2017

Date of Last Submission:

7 June 2017

Delivered at:

Adelaide

Delivered on:

12 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms K Clark

Solicitors for the Applicant:

Camatta Lempens Lawyers

Counsel for the Respondents:

Mr P D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 296 of 2016

CQI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review against a decision of the second respondent (‘the Authority’) dated 19 August 2016 which affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Safe Haven Enterprise Visa (‘the visa’).
The applicant relies on his Amended Application filed on 19 December 2016. That Application identifies two grounds as follows:
“1.The decision of the IAA was affected by jurisdictional error in that it misconstrued and/or misapplied the applicable law or otherwise failed to ask itself the correct question.
1.1The IAA found at paragraph [39] on the basis of country information before it that there had been recent targeted attacks directed specifically against Hazara Shias in Kabul, with a specified intention of future attacks against the same group in future;
1.2The IAA referred to and apparently accepted country information indicating that such attacks are likely to occur again, while finding that the evidence did not support that the attacks were likely to become regular or sustained;
1.3The IAA asked itself the wrong question in that it treated as relevant and/or necessary to the concept of a real chance of serious harm / real risk of significant harm the question of whether there had been “a change in Kabul’s security situation” (at…

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: [2018] FCCA 3178
Decision Date: 12 November 2018

CaseChat Overview and Summary

The applicant, CQI16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the Immigration Assessment Authority (IAA) had erred in its assessment of the applicant's claim for protection. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the IAA had asked itself the wrong question in assessing the applicant's claim, and whether the IAA's decision that there was no real chance of persecution was unreasonable.

Judge Heffernan found that the IAA had correctly applied the legal test for a protection visa, which requires an assessment of whether there is a real chance of persecution. The Court determined that the IAA's reasoning, which involved considering the applicant's subjective fears in light of objective country information, was not flawed. The Court concluded that the IAA's finding that there was no real chance of persecution was open to it on the evidence and was therefore not unreasonable.

The application for judicial review was dismissed.

Orders