CUYUGAN v Minister for Immigration - [2016] FCCA 3218

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUYUGAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3218

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether Tribunal erred in construing reg.1.15C of the Migration Regulations or cl.485.212 in Schedule 2 to the Regulations – whether reg.1.15C or the legislative instrument referred to therein involved an invalid exercise of power – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.504

Migration Regulations 1994 (Cth), regs.1.03, 1.15C, sch.2 cl.485.212

Cases cited:

Ajaya v Minister for Immigration and Border Protection (2014) 143 ALD 652;

[2014] FCA 718

Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35
Ashurov v Minister for Immigration and Border Protection (2015) 297 FLR 267; [2015] FCCA 1521

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417;

[2010] HCA 8

Khan v Minister for Immigration and Border Protection [2015] FCA 162

Kumar v Minister for Immigration and Border Protection [2014] FCA 1336

Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28;

[2015] FCCA 205

Milanes v Minister for Immigration and Border Protection (2015) 234 FCR

508; [2015] FCA 1105

Parmarv Minister for Immigration and Citizenship (2011) 195 FCR 186; [2011] FCA 760
Patel v Minister for Immigration and Border Protection [2014] FCA 823
Sidhu v Minister for Immigration and Border Protection [2014] FCA 935
Singh v Minister for Immigration and Border Protection [2014] FCA 185

First Applicant:

VIVENCIO III MORTALITA CUYUGAN

Second Applicant:

MARIA CRISTINA CUYUGAN

Third Applicant:	VERNON ANGELO TUBIG CUYUGAN
Fourth Applicant:	PAULA CUYUGAN

Fifth Applicant:

VIVENCIO V TUBIG CUYUGAN

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2780 of 2014

Judgment of:

Judge Barnes

Hearing date:

9 September 2015

Date of Last Submission:

29 July 2016

Delivered at:

Sydney

Delivered on:

13 December 2016

REPRESENTATION

Solicitors for the Applicants:

Parish Patience Lawyers

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2780 of 2014

VIVENCIO III MORTALITA CUYUGAN

First Applicant

MARIA CRISTINA CUYUGAN

Second Applicant

VERNON ANGELO TUBIG CUYUGAN

Third Applicant

PAULA CUYUGAN

Fourth Applicant

VIVENCIO V TUBIG CUYUGAN

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 9 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Skilled (Provisional) (Class VC) visas.
There are five applicants. Only the First Applicant (referred to for convenience hereafter as the Applicant) sought to satisfy the primary criteria for a Class VC visa. The other Applicants sought the grant of the visa on the basis that they were members of his family unit.
The Applicant applied for the visa in question…

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 3218
Decision Date: 13 December 2016

CaseChat Overview and Summary

The applicant, Mr. Cuyugan, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection Visa (Class XA). The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a Protection Visa, specifically concerning the assessment of his claims for protection. The matter came before Judge Barnes in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of Mr. Cuyugan's claims for protection. This involved determining whether the delegate had properly considered all relevant evidence, applied the correct legal tests for assessing claims of persecution, and whether the delegate's findings of fact were reasonably open on the evidence before them. The Court was required to consider the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) pertaining to protection visas.

Judge Barnes found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly concerning the credibility of his claims and the potential for harm he might face if returned to his country of origin. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all relevant evidence. The delegate's failure to properly engage with and assess key elements of the applicant's case meant that the decision was affected by jurisdictional error.

Consequently, Judge Barnes set aside the delegate's decision and remitted the application for a Protection Visa to the Minister for reconsideration according to law.

Orders