Cux15 v Minister for Immigration - [2017] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUX15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1574

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – assertion of jurisdictional error by Administrative Appeals Tribunal – unparticularised grounds seek merits review – no procedural unfairness – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

CUW15 v Minister for Immigration and Border Protection [2017] FCCA 1575

MZABP v Minister for Immigration [2015] 242 FCR 585
SZTES v Minister for Immigration [2015] FCAFC 158
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
WZAVL v Minister for Immigration and Border Protection [2016] FCA 334

Applicant:

CUX15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3522 of 2015

Judgment of:

Judge Dowdy

Hearing date:

5 July 2016

Date of Last Submission:

2 August 2016

Delivered at:

Sydney

Delivered on:

11 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr D Hughes of Counsel

Solicitors for the Respondents:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 24 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3522 of 2015

CUX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Fiji, aged 50 years, having been born on 22 December 1966.
By Application filed in this Court on 24 December 2015 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 9 February 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 4 March 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant did not comply with s.477(1) of the Migration Act 1958 (Cth) (Act) by filing his Application in this Court within 35 days of the decision of the Tribunal. He needs an extension of time under s.477(2) of some 282 days or some 9 months.
The present Application of CUX15 in this proceeding was heard on the same date as the Application of his wife in the matter of CUW15 v Minister for Immigration and Border Protection [2017] FCCA 1575 and evidence in one case was evidence in the other. The same procedure was adopted in their respective applications for review before the Tribunal. CUW15 also needs an extension of time under s.477(2) of the Act, being in her case an extension of 281 days.

Grounds for the Granting of a Protection Visa

A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7]:
[5]The…

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: [2017] FCCA 1574
Decision Date: 11 July 2017

CaseChat Overview and Summary

The applicant, Cux15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Dowdy J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in finding that the applicant had not established a well-founded fear of persecution for a reason within the meaning of section 5 of the *Migration Act*. This required the Court to consider the evidence presented by the applicant regarding past experiences and the real chance of future harm, and whether such harm, if it occurred, would be for a Convention reason.

Dowdy J analysed the evidence concerning the applicant's claims of past persecution and the potential for future harm. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*, which require a holistic assessment of the evidence to determine if there is a real chance of persecution. The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had made an error in assessing the credibility of the applicant's claims.

Consequently, Dowdy J set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders