CVM18 v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVM18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2456

Catchwords:
MIGRATION – Reinstatement – application to reinstate – where Registrar dismissed the application at a callover for non-attendance – where the applicant did not attend a callover – no arguable prospects of success – reinstatement refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth) ss.5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 425 .

Cases cited:

CAL15 v Minister for Immigration and Border Protection (2016) FCA 1344

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Sikari v Minister for Immigration & Anor (No.2) (2019) FCCA 1341

Applicant:

CVM18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1534 of 2018

Judgment of:

Judge Baird

Hearing date:

30 July 2019

Date of Last Submission:

23 July 2019

Delivered at:

Sydney

Delivered on:

30 July 2019

REPRESENTATION

The Applicant appeared in person:

Solicitors for the First Respondent:

Mr R.White, Mills Oakley

THE COURT:

DISMISSES the application in a case dated 15 March 2019.
ORDERS the Applicant pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1534 of 2018

CVM18

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)

Introduction

This is an Application dated 15 March 2019, filed on 18 March 2019, and accepted for filing on 25 March 2019, for reinstatement of the Applicant’s application for judicial review filed 31 May 2018. The Applicant’s judicial review application was dismissed by a Registrar of this Court on 12 March 2019 under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the non-appearance of the Applicant on that occasion, which was a callover.
The First Respondent, the Minister for Home Affairs, opposes the application for reinstatement, and further argues that there is no jurisdictional error made by the Administrative Appeals Tribunal in its decision dated 14 May 2018. The Minister further submits that the Applicant’s explanation for her non-appearance before the Registrar in this Court is unsatisfactory and inadequate, and points to the lack of supporting material proffered by the Applicant.

Factual Background

The Applicant was born in 1994 in Jilin in China. She arrived in Australia by plane under a TU573 Student visa on 17 June 2014. She applied for a Protection (Class XA) (Subclass 866) Visa on 21 May 2015. The grounds on which she applied for the Visa are based on her family’s Falun Gong practice and her Falun Gong practice in China.
The Applicant attended a protection Visa interview at the offices of the Department of Home Affairs (then the Department of Immigration and Border Protection) in Sydney on 8 October 2015.
By decision dated 26 October 2015, a Delegate of the Minister refused to grant the Applicant the Visa. The Delegate found the Applicant’s claims not to be credible. In particular, the Delegate did…

CaseChat Overview and Summary

The applicant, CVM18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa. The matter came before Baird J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims of persecution. This involved an examination of whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly in relation to the assessment of credibility and the definition of a "particular social group."

Baird J found that the delegate had made a jurisdictional error. The Court reasoned that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, including specific details about the threats they faced and the reasons for their fear. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims in a manner required by law. The Court reiterated the principle that when assessing claims for protection, decision-makers must undertake a thorough and detailed examination of the evidence presented, giving proper weight to all relevant factors.

Consequently, Baird J quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established