FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVR15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1380 |
| Catchwords: MIGRATION – Protection visa – original claim of fear of Taliban – harm said to be serious and systematic discriminatory conduct amounting to persecution – claim reformulated as fear of harm grounded on imputed political opinion and as member of particular social group – concerns as to credibility of applicant’s evidence and veracity of claims – evidence of psychologist as to applicant’s post-traumatic stress disorder – application for judicial review – claim to fear persecution anywhere in Pakistan – whether well-founded fear of persecution for Convention reason – whether post-traumatic stress disorder meant relocation not reasonable or practical – whether substantial, clearly articulated argument relying on established facts or probative evidence – whether formulation of argument different from submission raised at Tribunal in course of merits review – whether argument substantial – whether established facts or probative evidence – whether Tribunal failed to consider or misunderstood claim or proceeded on misunderstanding of law – whether finding subsumed in claim of greater generality – whether claim proceeded upon false premise – application dismissed. |
| Legislation: Australian Constitution, s.75 Migration Act 1958 (Cth), ss.4, 5, 5H, 28, 31, 36, 46, 47, 54, 55, 65, 66, 348, 411, 414, 415, 425, 430, 474, 476 |
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Details
- Case
- [2018] FCCA 1380
- Decision Date
CaseChat Overview and Summary
This matter came before Judge A Kelly concerning a dispute between CVR15 and the Minister for Immigration. The core of the disagreement revolved around the assessment of a protection visa application, specifically the interpretation of what constitutes a "well-founded fear" of persecution.
The legal issues before the court were twofold: first, whether the objective facts to be considered in assessing a "well-founded fear" are confined to those that induced the applicant's subjective fear, or if they extend to all relevant objective facts; and second, the scope of the Federal Circuit Court's jurisdiction to review decisions made under the Act, particularly in light of the privative clause provisions.
The court's reasoning drew heavily on established authorities. It was held that the objective facts considered must not be limited to those that directly caused the applicant's fear, citing the House of Lords' decision in *Sivakumaran* and the agreement of Mason CJ in *Chan Yee Kin*. This principle underscores that a fear can only be considered "well-founded" if it is objectively justified, even if the applicant is unaware of facts that undermine their apprehension. Furthermore, the court examined the jurisdictional limitations imposed by section 476 of the Act, noting that while a privative clause decision is generally final, the Federal Circuit Court retains jurisdiction to quash a decision affected by jurisdictional error, which is an error so grave that the decision does not answer the description of a "decision" under the Act.
The court's ultimate orders or the specific outcome of the application were not detailed in the provided text.
The legal issues before the court were twofold: first, whether the objective facts to be considered in assessing a "well-founded fear" are confined to those that induced the applicant's subjective fear, or if they extend to all relevant objective facts; and second, the scope of the Federal Circuit Court's jurisdiction to review decisions made under the Act, particularly in light of the privative clause provisions.
The court's reasoning drew heavily on established authorities. It was held that the objective facts considered must not be limited to those that directly caused the applicant's fear, citing the House of Lords' decision in *Sivakumaran* and the agreement of Mason CJ in *Chan Yee Kin*. This principle underscores that a fear can only be considered "well-founded" if it is objectively justified, even if the applicant is unaware of facts that undermine their apprehension. Furthermore, the court examined the jurisdictional limitations imposed by section 476 of the Act, noting that while a privative clause decision is generally final, the Federal Circuit Court retains jurisdiction to quash a decision affected by jurisdictional error, which is an error so grave that the decision does not answer the description of a "decision" under the Act.
The court's ultimate orders or the specific outcome of the application were not detailed in the provided text.
Orders
Orders of the court
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Background
Background to the litigation
McHugh J considered that:[35]Courts, writers and the U.N.H.C.R. Handbook agree, however, that a ‘well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant's fear? In Sivakumaran[36] the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear. The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of her fear. (Emphasis added)Mason CJ agreed in this reasoning.[37][35] (1989) 169 CLR 379 at p. 429.[36] Reg. v. Home Secretary; Ex parte Sivakumaran [1988] AC 958.[37] (1989) 169 CLR 379 at p. 389. Chan Yee Kin is a seminal authority which accepts that an applicant’s subjective fear may be genuine but requires that in assessing relocation consideration must be given to whether, objectively, that state of mind is undermined because the fear of persecution is not well-founded. In Minister for Immigration and Border Protection v MZYTS , the Full Court stated that:[38] The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there.Their Honours drew attention to the manner in which the objective element of the test had been described in S395/2002 v Minister for Immigration and Multicultural Affairs,[39] where Gummow and Hayne JJ held that that element variously required the decision-maker to: (1) decide what may happen if the applicant returned to the country of nationality; (2) pay close consideration to the situation of the particular applicant; (3) identify the relevant Convention reasons that the applicant had for fearing persecution, and; (4) identify the reasons of race, religion, nationality, membership of a particular social group or political opinion that were engaged. Their Honours held that it was often instructive to examine: (a) what had happened to an applicant when living in the country of nationality; (b) how persons like the applicant had been, or were being treated in the applicant’s country of nationality and recognised that: . . . whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.The need to consider the individual and distinctive features of a claim is to be understood in the broader context that decision-makers, confronted with a large number of merits reviews, may inevitably attempt to classify – at the risk of deciding – cases according to type.[38] (2013) 230 FCR 431, [35].[39] (2003) 216 CLR 473, [73]-[76].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Part 8 of the Act concerns the subject Judicial Review and comprises ss 474-484. Division 1 of Part 8 concerns the subject, Privative clause. By sub-s 474(1), a privative clause decision is final and conclusive, incapable of challenge in any Court and is not amenable to prerogative relief: s 474(1). The term Privative clause is defined by s 474(2). Sub-section 474(2) provides that in s 474:. . . “privative clause decision” means a decision of an administrative character made, or proposed to be made, . . . under this Act or under a regulation or other instrument made under the Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).Certain decisions are taken not to be Privative clause decisions: sub-s 474(4)-(5). A decision to grant or refuse a protection visa application is a decision of an administrative character made under the Act and Regulations. It is not a decision referred to in sub-s 474(4)-(5). Division 2 of Part 8 concerns the subject Jurisdiction and Procedure of Courts and comprises ss 474A-484. By s 476(1), the Federal Circuit Court has the same original jurisdiction in relation to a migration decision[85] as the High Court under para 75(v) of the Constitution. The High Court has jurisdiction with respect to all matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. It is accepted that the conferral of jurisdiction to issue such writs implies an incidental or ancillary authority to the effective exercise of that jurisdiction, including the authority to grant certiorari against an officer of the Commonwealth.[86] [85] The term ‘migration decision’ is defined by s 5 and includes a privative clause decision.[86]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [13] (Gleeson CJ). Citing R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 33; Glover v Walters (1950) 80 CLR 172 at 174-175. By sub-s 476(2), the Federal Circuit Court has no jurisdiction in relation to a primary decision[87] and certain privative clause decisions. In particular, the Federal Circuit Court has no jurisdiction to review the decision of a delegate to refuse a protection visa application: sub-s 476(2). Nor does it have jurisdiction in relation to a decision of a Tribunal affirming a delegate’s decision to refuse such an application unless the Tribunal’s decision is affected by jurisdictional error.[87] The term ‘primary decision’ is defined by sub-s 476(4). Despite s 474, the Court is authorised by sub-s 476(1) to quash a Tribunal decision which is shown to be affected by jurisdictional error;[88] that is, an error of sufficient gravity such that the decision does not answer the description of ‘decision’ for the purposes of the Act and which is accordingly, not a decision authorised by the Act. [88]Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [37] (Gleeson CJ); [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [160] (Callinan J).
Ratio Decidendi
Legal Principle Established
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