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CTM16 v Minister for Immigration

CTM16 v Minister for Immigration

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Case Copied 17 October 2018 80 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CTM16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2865

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA(1), 5H, 5J, 36, 36(2)(aa), 57(2), 473CB, 473DB, 473DC, 473DD, 473DE, 476

Cases cited:

Immigration [2003] FCAFC

Applicant:

CTM16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2080 of 2016

Judgment of:

Judge Kendall

Hearing date:

18 June 2018

Date of Last Submission:

18 June 2018

Delivered at:

Perth

Delivered on:

17 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr J Hartley

Solicitors for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Mr B Petrie

Second Respondent:	Submitting appearance save as to costs
Solicitors for the Respondents:	DLA Piper Australia

ORDERS

The applicant’s originating application filed 26 September 2016, amended on 18 May 2018, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

MLG 2080 of 2016

CTM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 2865
Decision Date: 17 October 2018

CaseChat Overview and Summary

The applicant, CTM16, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to deny their application for a protection visa. The matter came before Judge Kendall of the Federal Circuit and Family Court of Australia. The core of the dispute concerned whether the IAA's decision contained a jurisdictional error.

The primary legal issue before the Court was whether the IAA had made a jurisdictional error in its assessment of CTM16's protection visa application. This required the Court to consider whether the IAA had failed to exercise its jurisdiction, had wrongly exercised its jurisdiction, or had otherwise acted in a manner that constituted a jurisdictional error.

Judge Kendall found that the IAA had properly considered the evidence before it and had applied the relevant legal principles in assessing CTM16's claim for protection. The Court concluded that the IAA's decision was open to it on the evidence and that no jurisdictional error had been demonstrated. Consequently, the application for judicial review was dismissed.

Orders