CRE15 v Minister for Immigration - [2016] FCCA 2997

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRE15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2997

Catchwords:
MIGRATION – Application for extension of time in which to file application for judicial review – arguable case – extension granted – application for protection visa – whether Applicant made claim that if he returned to Sri Lanka he would be interrogated and suffer serious or significant harm – whether Tribunal considered claim – held Applicant made claim – held Tribunal considered claim – whether Tribunal considered significant evidence before it that if Applicant returned to Sri Lanka he would be interrogated and suffer serious or significant harm – held Tribunal considered evidence – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 441A, 441C, 477

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Liew v Minister for Immigration [2016] FCA 172

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
Pokharel v Minister for Immigration [2016] FCAFC 34

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
SZTPG v Minister for Immigration [2015] FCCA 918
SZWCC v Minister for Immigration [2015] FCA 1402
WZAQR v Minister for Immigration and Border Protection [2013] FCAFC 122

Applicant:

CRE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2757 of 2015

Judgment of:

Judge Jones

Hearing date:

17 August 2016

Date of Last Submission:

17 August 2016

Delivered at:

Melbourne

Delivered on:

14 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Mr Hill

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Applicant be granted an extension of time to 15 December 2016 pursuant to s.477(2) of the Migration Act 1958 in which to file an application for judicial review.
The application for judicial review be dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2757 of 2015

CRE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 September 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of…

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.

Keep reading for free

Create a free CaseChat account to read CRE15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 2997
Decision Date: 14 December 2016

CaseChat Overview and Summary

CRE15 (the applicant) sought judicial review of a decision made 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. The Minister's decision was made under s 48B of the Migration Act 1958 (Cth), which deals with applications for protection visas by non-citizens who have entered Australia unlawfully. The matter came before Judge Jones of 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 application was affected by jurisdictional error. Specifically, the applicant argued that the Minister failed to properly consider relevant information and that the decision was therefore unreasonable. The applicant contended that the Minister's assessment of the risk of harm in their country of origin was flawed, leading to an incorrect conclusion that the applicant did not meet the criteria for a protection visa.

Judge Jones considered the principles of administrative law, including the requirement for decision-makers to undertake a proper consideration of the evidence before them. The Court reviewed the material that had been before the Minister and assessed whether the Minister's reasoning demonstrated a failure to engage with key aspects of the applicant's claims. The Court found that the Minister's delegate had adequately considered the evidence and the applicant's claims, and that the decision was not so unreasonable that it could be characterised as a jurisdictional error. The Court applied the established legal test for unreasonableness in administrative decision-making, which requires a high threshold to be met.

The application for judicial review was dismissed.

Orders