CTM15 v Minister for Immigration - [2018] FCCA 3210

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTM15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3210

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 438

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36
BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522
CJR17 v Minister for Immigration and Border Protection [2018] FCA 1627
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
Singh v Minister for Immigration (2016) 313 FLR 1

Applicant:

CTM15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3449 of 2015

Judgment of:

Judge Dowdy

Hearing dates:

19 April 2016 &

24 November 2017

Delivered at:

Sydney

Delivered on:

12 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms S. He

Solicitors for the First Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 21 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3449 of 2015

CTM15

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 China aged 37 years, having been born on 24 October 1981.
By Application filed in this Court on 21 December 2015 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 July 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant applied for a Protection visa on 6 February 2014, some 5½ months after having last arrived in Australia on 21 August 2013.
Prior to deserting his cargo ship in Australia on 21 August 2013, whilst holding a Maritime Cruise (Subclass 988) visa, he had entered Australia as a seaman 13 times between his first arrival in Australia on 16 July 2009 and his last arrival on 21 August 2013.

Relevant Criteria and Law Applicable to Protection Visa Applications

A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister…

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 3210
Decision Date: 12 November 2018

CaseChat Overview and Summary

The applicant, CTM15, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether CTM15 would be subject to persecution or serious harm if returned to their country of origin. The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to properly consider the evidence before them, particularly concerning the applicant's claims of past persecution and the risk of future harm. This involved an examination of whether the Minister's assessment of the applicant's credibility and the objective country information was reasonable and supported by the evidence.

Dowdy J found that the Minister's delegate had made a jurisdictional error by failing to adequately assess the evidence relating to the applicant's claims of past persecution. The delegate's reasoning did not sufficiently engage with the specific details provided by CTM15, nor did it properly weigh the objective country information against those claims. The Court reiterated the principle that a delegate must not only consider the evidence but must also provide reasons that demonstrate a proper understanding and assessment of that evidence, particularly when assessing claims of persecution. The decision was therefore set aside.

Orders