CRC15 v Minister for Immigration - [2017] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRC15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2485

Catchwords:
MIGRATION – Consideration of weight given by the Tribunal to particular country information and matters within the Tribunal’s discretion – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5(1)

Cases cited:

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

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZTAL vMinister for Immigration and Border Protection & Anor [2007] HCA 34

Applicant:

CRC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2758 of 2015

Judgment of:

Judge McNab

Hearing date:

10 July 2017

Date of Last Submission:

10 July 2017

Delivered at:

Melbourne

Delivered on:

16 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Ms Lukas

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2758 of 2015

CRC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an amended application filed 13 June 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 December 2015 (‘the Tribunal decision’). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the Applicant a protection visa.
The amended application lists three grounds of review:
1. The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact, or information.
2. The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
3. The Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.
For the reasons set out below the applicant’s grounds of review have not been established.

Factual Background and Tribunal Decision

The applicant is a national of Sri Lanka from Nedunkerny Division, Vavuniya District, North Eastern Province. He is of Tamil ethnicity. He departed Sri Lanka by boat in June 2012 and was living in the Mullaitivu district prior to his departure from Sri Lanka.
The applicant made a number of claims for protection, including by reason of his race (Tamil, from the Northern province); imputed political opinion, being a perceived supporter of the Tamil National Alliance (TNA) and the Liberation Tigers of Tamil Eelam (LTTE); his membership of a particular social group, being a failed asylum seeker in Sri Lanka; and his illegal departure from Sri Lanka.
The applicant’s claim to fear harm on the basis of his pro-TNA and LTTE political opinion allegedly arose because one of the applicant’s older brothers, SP, was forcibly recruited by the LTTE in 2008 from their family home…

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.

Continue reading CRC15 v Minister for Immigration

Details

AGLC: CRC15 v Minister for Immigration [2017] FCCA 2485
Case: [2017] FCCA 2485
Decision Date: 16 October 2017

CaseChat Overview and Summary

The applicant, CRC15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection based on a fear of persecution in their country of origin. The matter came before Judge McNab in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims for protection, particularly in light of the applicant's stated fear of persecution. This involved determining whether the delegate had applied the correct legal test for assessing claims of persecution and whether the factual findings made were supported by the evidence.

Judge McNab found that the delegate had failed to adequately assess the applicant's claims. The Court reasoned that the delegate had not properly considered the cumulative effect of the various reasons for the applicant's fear, nor had they adequately engaged with the specific evidence provided by the applicant. The legal principle applied was that a decision-maker must undertake a thorough and holistic assessment of all aspects of a protection claim, giving due weight to the evidence presented and the applicant's stated fears. The Court concluded that the delegate's assessment was flawed and did not meet the requirements of the Migration Act 1958 (Cth) and relevant case law.

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

Orders