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CVQ17 v Minister for Immigration

CVQ17 v Minister for Immigration

Case [2018] FCCA 2121 7 September 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CVQ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2121

Catchwords:
MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)
International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976)
Refugees Convention Act 2012 (Republic of Nauru)
United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014)

Cases cited:

AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106

ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

CRI026 v The Republic of Nauru (2018) 355 ALR 216

CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14

DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZANX v Minister for Immigration & Border Protection [2017] FCA 307
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94

Applicant:

CVQ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 349 of 2017

Judgment of:

Judge Smith

Hearing date:

2 May 2018

Date of Last Submission:

14 June 2018

Delivered at:

Sydney (Perth by video link)

Delivered on:

7 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr N Draper, Granich Partners

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 349 of 2017

CVQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 5 June 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration to refuse to grant the applicant a protection visa.

Background

The applicant is a citizen of Afghanistan who comes from the Malistan district of Ghazni province. He arrived in Australia by boat on 23 September 2012.
On 15 December 2015, the applicant lodged an application for a protection visa after the Minister had exercised his power under s.46A of the Migration…

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.

Continue reading CVQ17 v Minister for Immigration

Details

AGLC: CVQ17 v Minister for Immigration [2018] FCCA 2121
Case: [2018] FCCA 2121
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, CVQ17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the assessment of CVQ17's claims for protection, specifically whether they had a well-founded fear of persecution. 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 had properly considered and assessed CVQ17's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had applied the correct legal test for assessing a well-founded fear and whether the delegate's findings of fact were reasonably open on the evidence.

Judge Smith found that the delegate had failed to adequately consider certain aspects of CVQ17's evidence regarding past experiences and the potential for future harm. The Court reiterated the principles that a well-founded fear requires an objective assessment of the real chance of persecution, taking into account both subjective fear and objective circumstances. The delegate's assessment was found to be deficient in its engagement with the specific details of CVQ17's account and the relevant country information, leading to an unreasonable conclusion.

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

Orders