CUS15 v Minister for Immigration - [2019] FCCA 2588

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUS15 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2588

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – certificate issued pursuant to s. 438(1) of the Migration Act 1958 – public interest immunity claim over documents the subject of said certificate – Applicant seeking disclosure of documents – claim of public interest immunity upheld.

Legislation:
Evidence Act 1995, ss.130(1), 130(5)
Migration Act 1958, ss.438(1)(a)

Cases cited:

AGG17 v Commonwealth of Australia [2018] FCA 242
Burmah Oil Co Ltd v Bank of England [1980] AC 1090
Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350

Minister for Immigration and Border Protection and SZMTA & Anor [2019] HCA 3
NAVK v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 160
Sankey v Whitlam (1978) 142 CLR 1

Applicant:

CUS15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 2868 of 2015

Judgment of:

Judge Blake

Hearing date:

2 September 2019

Date of last submission:

2 September 2019

Delivered at:

Melbourne

Delivered on:

13 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr Healer

Solicitors for the Applicant:

King & Wood Mallesons

Counsel for the First Respondent:	Ms Lucas
Counsel for the Second Respondent:	None

Solicitors for the Respondents:

Clayton Utz

ORDERS

The First Respondent’s claim for public interest immunity over documents the subject of a Certificate dated 23 June 2014 of a delegate of the First Respondent be upheld.
Costs be reserved.

NOTATION

The substantive proceedings remain listed for hearing on 2 December 2019 at 10am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2868 of 2015

CUS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The substantive matter comes to the Court as an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 1 December 2015. The matter the subject of this decision is an interlocutory dispute between the parties.
The present interlocutory dispute between the parties concerns the following issue: whether certain documents the subject of a certificate issued by a delegate of the Minister under section 438(1)(a) of the Migration Act 1958 (‘Act’) ought to be disclosed to the Applicant. The documents are the subject of a claim for public interest immunity by the First Respondent (‘Minister’), who resists disclosure on those grounds.
For the reasons that follow, I have concluded that the Minister’s claim for public interest immunity over the documents should be upheld.

Background

The background to the present matter is as follows. The Applicant is a citizen of Iran who applied for a protection visa (‘Visa’) on 31 October 2012. He had spent some time in the United States prior to coming to Australia. In the course of background checks that occurred, a delegate of the Minister became aware of two matters concerning the Applicant. The first was that he had sought…

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: [2019] FCCA 2588
Decision Date: 13 September 2019

CaseChat Overview and Summary

The applicant, CUS15, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The dispute concerned the lawfulness of the Minister's decision, specifically whether it was affected by an error of law. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister, in assessing the applicant's claims for a protection visa, had failed to properly consider and assess the evidence presented by the applicant, particularly in relation to their fear of persecution. This involved determining whether the delegate had applied the correct legal test for assessing claims of persecution and whether the delegate's findings of fact were reasonably open on the evidence.

Judge Blake found that the delegate had made an error of law by failing to adequately assess the applicant's claims regarding their fear of persecution. The Court reasoned that the delegate had not properly engaged with the specific evidence provided by the applicant, leading to an incomplete and therefore unlawful assessment of the protection visa application. The principles applied centred on the obligation of decision-makers to conduct a thorough and evidenced-based assessment of all claims made by an applicant for a protection visa.

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

Orders