CQU15 v Minister for Immigration - [2016] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQU15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1946

Catchwords:
MIGRATION – Application to review decision of the former Migration Review Tribunal – whether the Tribunal failed to comply with a Ministerial Direction and thus exceeded its jurisdiction – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(g), 116(3)

Migration Regulations 1994 (Cth), regs.2.43(1)(p), 2.43(1)(q)

Cases cited:

ACH15 v Minister for Border Protection [2015] FCCA 1250

Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322

Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009]

FCAFC 140

Minister for Border Protection v SZUSU (2016) 237 FCR 305; [2016] FCAFC 50
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Uelese v Minister for Border Protection (2015) 319 ALR 181; [2015] HCA 15

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133;

[2001] FCA 568

Applicant:

CQU15 (BY HIS LITIGATION GUARDIAN)

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 145 of 2015

Judgment of:

Judge Barnes

Hearing date:

9 December 2015

Delivered at:

Sydney

Delivered on:

29 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr C Jackson

Solicitors for the Applicant:

HIV/AIDS Legal Centre

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 145 of 2015

CQU15

(by his litigation guardian)

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) of 16 December 2014 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.
The Applicant is a South African national who was born in 1981. He first came to Australia with his family in 1993. The family returned to South Africa in 1997. The Applicant returned to Australia with his mother and siblings in 2001. He has not departed since.
In 2002 the Applicant was diagnosed as HIV positive. In or about 2006 he was diagnosed as suffering from schizophrenia. On 2 November 2015 I made orders by consent that the New South Wales Public Guardian be appointed as litigation guardian for the Applicant in these proceedings.
While the Applicant’s mother and siblings obtained permanent residence in Australia in 2005, the Applicant was not included in that application, apparently because of his HIV status.
In either 2007 (as his wife indicated in a statutory declaration of 4 July 2013) or 2008 (as the Applicant claimed in his statutory declaration of 20 June 2014), he married. Given the allocation of a pseudonym to the Applicant in these proceedings, it is convenient to refer to his wife…

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 1946
Decision Date: 29 July 2016

CaseChat Overview and Summary

The applicant, CQU15, sought judicial review of a decision made by the Minister for Immigration to refuse to grant a visa. The dispute concerned the applicant's eligibility for a protection visa under the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant met the criteria for a protection visa, specifically concerning the assessment of whether they would suffer substantial harm if returned to their country of origin. This involved an examination of the evidence presented by the applicant regarding past persecution and the real chance of future persecution.

Judge Barnes considered the evidence in light of the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth). The Court applied the established legal principles for assessing claims for protection visas, including the standard of proof required and the assessment of credibility. The Court found that the applicant had not established that they would suffer substantial harm, and therefore did not meet the criteria for a protection visa.

The application for judicial review was dismissed.

Orders