CUU15 v Minister for Immigration - [2016] FCCA 1886

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUU15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1886

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – extension of time – whether the applicants should be granted leave for separate representation – whether the applicants have a reasonable explanation for delay – whether the Tribunal’s decision was unjust or unreasonable – whether the Tribunal denied the second applicant procedural fairness – whether the Tribunal failed to consider an integer of the second applicant’s claim – whether the Tribunal failed to provide an opportunity for the second applicant to appear – no jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 425(2)(b), 476, 477

Cases cited:
MDA National Limited v Medical Defence Australia Limited [2014] FCA 954

Spencer v Commonwealth of Australia (2010) 241 CLR 118

First Applicant:

CUU15

Second Applicant:

CUV15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3516 of 2015

Judgment of:

Judge Street

Hearing date:

22 July 2016

Date of Last Submission:

22 July 2016

Delivered at:

Sydney

Delivered on:

28 July 2016

REPRESENTATION

Counsel for the Applicants:

Mr A Searle & Mr S Lawrence

Counsel for the First Respondent:

Mr D Hughes

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for an extension of time by the first applicant is dismissed.
The application for an extension of time by the second applicant is dismissed.
The applicants pay the costs of the first respondent fixed in the amount of $9,000.00.
The application for leave for the second applicant to be separately represented is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3516 of 2015

CUU15

First Applicant

CUV15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 29 October 2014 affirming the decision of the delegate not to grant the applicants Protection (Class XA) visas. The applicant and her son were found to be citizens of Lebanon who arrived in Australia on 26 March 2013 as the holders of a Sponsored Family Visitor visa granted on 21 February 2013. The application for protection was lodged on 13 June 2013 at which time the second applicant was still a child.
The first applicant is a practising Sunni Muslim, and claimed to fear harm from radical Islamists who she claimed had targeted her family because of her husband’s political activities in trying to dissuade young men in their village from fighting in Syria and Tripoli against the Alawites. The first applicant claimed the Islamists had threatened to harm all members of her family and that two weeks after she arrived in Australia she was told her house was attacked and severely damaged by Islamists…

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 1886
Decision Date: 28 July 2016

CaseChat Overview and Summary

The applicant, CUU15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CUU15 a protection visa. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing CUU15's claims for protection.

Judge Street found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The Court reasoned that a proper assessment of a protection visa application requires a thorough and nuanced evaluation of all evidence presented by the applicant, particularly concerning their well-founded fear of persecution. The delegate's assessment was found to be superficial and did not engage with the specific details of CUU15's experiences, thereby constituting a failure to consider relevant material.

Consequently, the Court quashed the Minister's decision and remitted the application for a fresh consideration in accordance with the law.

Orders