CVS16 v Minister for Immigration - [2017] FCCA 249

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVS16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 249

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran as a Christian and a homosexual – applicant not believed – whether the Authority overlooked relevant material considered – no jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth), ss.46A, 65, 73CB, 368, 430, 473CC, 473DC, 473DD, 473EA

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Minister for Immigration v SZGUR (2011) 241 CLR 594
Minister for Immigration v SZSRS (2014) 309 ALR 67
Minister for Immigration v Yusuf (2001) 206 CLR 323
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405
WZAVW v Minister for Immigration [2016] FCA 760

Applicant:

CVS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 453 of 2016

Judgment of:

Judge Driver

Hearing date:

15 February 2017

Date of last submission:

19 April 2017

Delivered at:

Sydney, via videolink to Perth

Delivered on:

18 May 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 30 September 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 453 of 2016

CVS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 7 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the Minister filed on 8 February 2017.
The applicant is a national of Iran, who entered Australia as an unauthorised maritime arrival on 23 May 2013[1].
[1] Court Book (CB) 189
On 16 June 2013, the applicant participated in an Irregular Maritime Arrival and Induction Interview with an officer in the Minister’s Department[2].
[2] CB 1-19
On 13 March 2014, the applicant was granted a temporary humanitarian visa and a bridging visa[3]. The former ceased on 20 March 2014 and the latter was cancelled on 28 July 2014 (after the applicant had been charged with one count of reckless wounding, for which he was later convicted)[4].
[3] CB 189
[4] CB 189
On 1 September 2015, the Minister’s Department wrote to the applicant to advise him that the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) (Migration Act) to permit him to make an application for, relevantly, a SHEV[5].
[5] CB 20-25
On 12 October 2015, the applicant applied for a SHEV[6]. He provided some further information in…

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 249
Decision Date: 18 May 2017

CaseChat Overview and Summary

In *CVS16 v Minister for Immigration*, the applicant, CVS16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Circuit and Family 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 applicant contended that the delegate failed to properly consider and assess the evidence presented in support of their claims of persecution, thereby failing to satisfy the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant argued that this failure amounted to a jurisdictional error, rendering the decision invalid.

Judge Driver found that the delegate had indeed made a jurisdictional error. The Court's reasoning focused on the delegate's assessment of the applicant's claims regarding past persecution and the risk of future persecution. The delegate's reasons for decision were found to be inadequate, failing to engage with significant aspects of the evidence and to provide a proper explanation for why certain claims were not accepted. The Court applied the principles established in cases concerning the proper discharge of statutory duties by decision-makers, emphasising the need for a comprehensive and reasoned assessment of all relevant evidence when determining protection visa applications.

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

Orders