CSL15 v Minister for Immigration - [2016] FCCA 3010

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSL15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3010

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of Tribunal decision refusing Protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

CLI15 v Minister for Immigration [2016] FCA 1223

Dranichnikov v Minister for Immigration (1993) 197 ALR 389
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1

Applicant:

CSL15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3411 of 2015

Judgment of:

Judge Dowdy

Hearing date:

20 April 2016

Date of last submission:

20 April 2016

Delivered at:

Sydney

Delivered on:

21 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms P Blackadder

Solicitors for the Respondents:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 16 December 2015 is dismissed, with costs to be determined.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3411 of 2015

CSL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Bangladesh aged 24 years, having been born on 3 May 1992.
By Application filed in this Court on 16 December 2015 he seeks to quash and I assume to have redetermined, a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 12 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 30 January 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

The Applicant applied for a Protection visa on 10 January 2013. He had arrived in Darwin on 17 July 2012 without valid travel documents.
In his Biodata interview of 17 July 2012 he claimed to be stateless and of Bengali ethnicity and born in Bangladesh. He further claimed to have travelled to Australia from Bangladesh via Bangkok and then via Malaysia and Indonesia. He gave as the reason he was seeking Australia’s protection that “in Bangladesh they don’t pay a proper salary so I came to Australia”.
In his Irregular Maritime Arrival Entry Interview of 22 August 2012 he claimed to be stateless and of Rohingya ethnicity and denied that he had ever been arrested or detained by the police or security organisations in Bangladesh or that the police and security or intelligence organisations had impacted on his day-to-day life.
In his Statutory Declaration of 10 January 2013 which formed part of his Protection visa application, the Applicant said of his fear if he returned to Bangladesh as follows:-
What I fear in Bangladesh
33.I fear that I would suffer more discrimination and hardship because I am a Rohingyan refugee if I was returned to Bangladesh. As well as…

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 3010
Decision Date: 21 December 2016

CaseChat Overview and Summary

The applicant, CSL15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia on 10 March 2015, claimed to be a citizen of Iran and alleged persecution based on their political opinion and membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal (AAT). The applicant then brought proceedings in the Federal Court of Australia.

The central legal issue before Dowdy J was whether the AAT had erred in law in its assessment of the applicant's claims. Specifically, the court was required to determine if the AAT had failed to adequately consider the evidence presented by the applicant regarding their fear of persecution, and whether the AAT's findings on the applicant's credibility were reasonably open on the evidence. The applicant also contended that the AAT had failed to properly apply the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to their protection visa application.

Dowdy J found that the AAT had made a jurisdictional error. The court held that the AAT had failed to properly engage with the entirety of the evidence before it, particularly concerning the applicant's subjective fear of persecution. The judge concluded that the AAT's adverse credibility findings were not reasonably open on the evidence and that the Tribunal had not adequately explained its reasoning in rejecting key aspects of the applicant's testimony. Consequently, the AAT's decision was set aside. The matter was remitted to the AAT for redetermination according to law.

Orders