CUH17 v Minister for Immigration - [2018] FCCA 1337

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1337

Catchwords:
CITZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (subclass 790) visa – whether Authority considered all material forwarded by Secretary – whether Authority considered all integers of applicant’s claim.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B), 473CB, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BBK15 v Minister for Immigration & Border Protection [2016] FCA 680
Minister for Immigration and Citizenship v Kajdi (2010) 190 FCR 248
NHAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZSRY v Minister for Immigration & Anor [2013] FCCA 1284

Applicant:

CUH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 589 of 2017

Judgment of:

Judge Jarrett

Hearing date:

18 May 2018

Date of Last Submission:

18 May 2018

Delivered at:

Brisbane

Delivered on:

24 May 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms Forder

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 12 December, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 589 of 2017

CUH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 14 December, 2012. He arrived by boat and for the purposes of the Migration Act 1958 is an unauthorised maritime arrival.
On 12 April, 2016 and at the invitation of the first respondent he lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa.
In his visa application and the documents that supported it, he claimed that he was a Sunni Muslim of Pashtun ethnicity. He claimed to have left Pakistan after his brother was killed because there was not any security but he did not know why his brother had been killed. He also claimed that he and his brother looked like Hazaras and attended Muas College in a Hazara town in Quetta. He said that he and his family had been asked if they had converted to Shia Islam. He said that his brother and he were badly beaten by people who looked like Sunnis who were screaming “kill Hazara”. He said that two weeks after that incident his brother was killed in what he described as a “targeted killing”.
The applicant claimed to fear that if he returned to Pakistan he would be shot or killed as a target of “Sectarian Issues” because of his resemblance to a Hazara or as a target for a “Shia Sunni incident”. The applicant also claimed that he and his brother worked as cleaners for…

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 1337
Decision Date: 24 May 2018

CaseChat Overview and Summary

The applicant, CUH17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant CUH17 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate, in assessing CUH17's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Jarrett found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Kaur v Minister for Immigration and Ethnic Affairs*, emphasizing the importance of a thorough and fair assessment of protection claims. The delegate's assessment was found to be superficial and lacking in the detailed analysis required by the *Migration Act 1958* (Cth) and relevant case law.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders