CWW16 v Minister for Immigration - [2020] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWW16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 993

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal misapplied the real chance test.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47
AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
BYM16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2445
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754
EOW18 v Minister for Home Affairs & Anor [2019] FCCA 3554
FJX17 v Minister for Home Affairs [2019] FCA 325
Kostas v HIH Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32
Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248; [2010] FCAFC 145

Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559; [1997] HCA 22

SZSRR v Minister for Immigration and Border Protection [2017] FCA 328

Applicant:

CWW16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2716 of 2016

Judgment of:

Judge Barnes

Hearing date:

11 June 2019

Date of Last Submission:

13 June 2019

Delivered at:

Sydney

Delivered on:

1 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Okereke-Fisher

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2716 of 2016

CWW16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa.
The Applicant, a citizen of Pakistan, arrived in Australia in January 2009 as the holder of a Student visa. His Student visa was cancelled on 27 March 2014, apparently due to the non-payment of fees.
In the meantime, on 17 January 2014, the Applicant applied for a Protection visa. He claimed to fear harm in Pakistan because of his Shia religion. He claimed that in 1998 he and his family had received threatening phone calls and letters from the Taliban and Wahabi organisations because of their Shia faith. He claimed that when they were first threatened the family lodged a police report but that the threats, including a threat to…

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: [2020] FCCA 993
Decision Date: 1 May 2020

CaseChat Overview and Summary

The applicant, CWW16, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had affirmed the Minister for Immigration's decision to refuse the applicant's protection visa application. The central dispute concerned whether the AAT had correctly applied the "real chance" test when assessing the applicant's claims.

The primary legal issue before the Federal Circuit Court was whether the AAT erred in law by misapplying the "real chance" test in its assessment of the applicant's claims for protection. This involved determining whether the Tribunal had properly considered the available evidence and applied the correct legal standard in concluding that there was not a real chance of the applicant suffering persecution if returned to their country of origin.

Judge Barnes found that the AAT had indeed misapplied the "real chance" test. The Tribunal had failed to adequately consider the cumulative effect of the evidence presented by the applicant, particularly in relation to the specific risks they faced. The Court reiterated that the "real chance" test requires a holistic assessment of the evidence, and that a failure to give due weight to all relevant factors constitutes an error of law. The decision of the AAT was set aside, and the matter was remitted to the AAT for redetermination according to law.

Orders