CQT15 v Minister for Immigration - [2017] FCCA 711

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQT15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 711

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Ghana from cultists – applicant not believed – whether the Tribunal decision is vitiated by bias considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424AA

Cases cited:

AMA15 v Minister for Immigration [2015] FCA 1424

Minister for Immigration v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration (2013) 212 FCR 235
SZRAG v Minister for Immigration [2016] FCA 189
SZVCH v Minister for Immigration & Anor [2015] FCCA 1424

Applicant:

CQT15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3359 of 2015

Judgment of:

Judge Driver

Hearing date:

11 April 2017

Delivered at:

Sydney

Delivered on:

19 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The application as amended on 19 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3359 of 2015

CQT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 November 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is a citizen of Ghana. He came to Australia in 1992, ostensibly to watch a boxing bout between Jeff Fenech and Azuma Nelson in Melbourne. He has been here ever since. Following his arrival in Australia in 1992 the applicant applied for recognition of his refugee status. That application was refused in December 1997.
Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration[1] the applicant was permitted to make a second protection visa application, limited to the complementary protection criterion, which he did on 19 November 2013. On 29 May 2014 the delegate refused that protection visa application. The applicant sought review before the former Refugee Review Tribunal on 24 June 2014. He was invited to appear before the Tribunal at a hearing by letter dated 6 February 2015 and he attended the hearing on 9 March 2015.
[1] (2013) 212 FCR 235
As is apparent from the Tribunal’s record of that hearing, the Tribunal had serious doubts about significant aspects of the applicant’s claims. The applicant had claimed to have a “fetish church” or “fetish cult problem” in Ghana. He claimed to have provided material about the fetish cult to the Australian High Commission in Harare in 1992 when he applied for an Australian transit visa. He claims that that material has never been returned to him which puts him in danger if he ever returns to Ghana. The Tribunal was concerned that the applicant did not mention providing any sensitive information to…

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 711
Decision Date: 19 May 2017

CaseChat Overview and Summary

The applicant, CQT15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CQT15 a protection visa. The matter was heard before Judge Driver in the Federal Circuit and Family 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 consider whether the delegate of the Minister, in assessing CQT15's claims for protection, had failed to properly consider or give sufficient weight to certain aspects of CQT15's evidence and submissions.

Judge Driver found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's assessment of the risk of persecution faced by CQT15. The court determined that the delegate had failed to adequately engage with the specific details of CQT15's account of past events and the potential future harm they might face. This failure meant that the delegate's conclusion that CQT15 did not hold a well-founded fear of persecution was not based on a proper consideration of all relevant material, thereby constituting a jurisdictional error.

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

Orders