CSD16 v Minister for Immigration - [2018] FCCA 677

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSD16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 677

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China because of a land dispute – applicant not believed – whether the Tribunal considered the applicant’s explanations for discrepancies in his evidence considered – whether the Tribunal decision was affected by a certificate issued under s.438 of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.189, 424A, 438, 440

Cases cited:

AVO15 v Minister for Immigration [2017] FCA 566

BEG15 v Minister for Immigration & Anor [2016] FCCA 2778
BEG15 v Minister for Immigration [2017] FCAFC 197
CIW15 v Minister for Immigration & Anor [2017] FCCA 1206

CKG15 v Minister for Immigration & Anor [2017] FCCA 938
CQG15 v Minister for Immigration [2016] FCAFC 146

Minister for Immigration v BJN16 [2017] FCAFC 197

Minister for Immigration v Singh & Anor [2017] HCATrans 107

Minister for Immigration v WZARH (2015) 246 CLR 326
MZAFZ v Minister for Immigration [2016] FCA 1081
NBKT v Minister for Immigration [2006] FCAFC 195; (2006) 156 FCR 419
Re Minister for Immigration; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Singh v Minister for Immigration (2016) 244 FCR 305
SZVDC v Minister for Immigration [2018] FCAFC 16
SZVKA v Minister for Immigration & Anor [2017] FCCA 1199
SZVVI & Ors v Minister for Immigration & Anor [2017] FCCA 546

Applicant:

CSD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 428 of 2016

Judgment of:

Judge Driver

Hearing date:

21 March 2018

Delivered at:

Sydney

Delivered on:

21 March 2018

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr K Eskerie of Sparke Helmore

ORDERS

The application lodged on 21 September 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 428 of 2016

CSD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 August 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of legal submissions.
The applicant, a citizen of China, arrived in Australia on 24 December 2007 as the holder of a student (Class TU) (Subclass 571) visa.[1] On 9 May 2009, this visa was cancelled.[2] On 17 June 2016, the applicant was located by NSW Police and detained under s.189 of the Migration Act 1958 (Cth) (Migration Act).[3] On 29…

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: [2018] FCCA 677
Decision Date: 21 March 2018

CaseChat Overview and Summary

CSD16 (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 is of Iranian nationality, claimed to fear persecution in Iran on the grounds of imputed political opinion and membership of a particular social group. The delegate of the Minister had refused the protection visa application, finding that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The applicant subsequently applied to the Federal Circuit and Family Court of Australia for judicial review of this decision.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence relating to his claims of imputed political opinion and membership of a particular social group. The applicant contended that the delegate's assessment of these claims was unreasonable and lacked an evidential basis, thereby constituting a failure to exercise the power conferred by the *Migration Act* according to law.

Judge Driver found that the delegate's assessment of the applicant's claims was indeed flawed. The Court held that the delegate had failed to adequately engage with the specific evidence provided by the applicant concerning his alleged political activities and the nature of the social group to which he claimed to belong. The reasoning applied by the delegate was found to be superficial and did not demonstrate a proper understanding or evaluation of the risks the applicant faced. This failure to properly assess the evidence amounted to a failure to exercise the jurisdiction vested in the delegate, leading to jurisdictional error.

Consequently, the Court made orders setting aside the delegate's decision and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders