CQO15 v Minister for Immigration - [2016] FCCA 2948

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQO15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2948

Catchwords:
MIGRATION – Application for protection visa – whether the Tribunal failed to consider an integer of claim made by the Applicant – held Tribunal failed to consider an integer of claim giving rise to jurisdictional error – whether the Tribunal failed to accord the Applicant procedural fairness by failing to raise a live issue during the course of the Tribunal hearing – the Tribunal failed to accord the Applicant procedural fairness in relation to one live issue not raised by the delegate of the First Respondent – held this failure did not give rise to jurisdictional error – writs issued quashing the decision of the Second Respondent and remitting the matter back to the Second Respondent to be determined according to law.

Legislation:

Migration Act 1958 (Cth) ss.36(2)(a), (aa), 425(1)

Cases cited:

Applicant:

CQO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2724 of 2015

Judgment of:

Judge Jones

Hearing date:

16 August 2016

Date of Last Submission:

16 August 2016

Delivered at:

Melbourne

Delivered on:

22 November 2016

REPRESENTATION

Counsel for the Applicant:

Ms Grinberg

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr Yuile

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 12 November 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made…

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: [2016] FCCA 2948
Decision Date: 22 November 2016

CaseChat Overview and Summary

CQO15 (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 without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the likelihood of them suffering persecution if returned to their country of origin. Specifically, the Court was required to consider whether the Tribunal had properly applied the relevant legal tests for establishing membership of a particular social group and for assessing the risk of persecution, as established in Australian case law and international conventions.

Judge Jones found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claim. The Court reasoned that the Tribunal had failed to adequately consider all the evidence presented by the applicant regarding their alleged membership of a particular social group. Furthermore, the Court held that the Tribunal had applied an incorrect legal standard when assessing the risk of persecution, thereby failing to give proper consideration to the applicant's subjective fears in conjunction with objective country information. The Court concluded that the Tribunal's decision was affected by an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders