CWX18 v Minister for Immigration - [2019] FCCA 2369

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWX18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2369

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Subclass 866 (Protection) visa – whether the Tribunal failed to give proper and genuine consideration to the applicant’s evidence – whether the Tribunal misunderstood country information – whether the Tribunal made a number of jurisdictional errors – leave requested by the applicant to rely on the amended application – request denied – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 368

Migration Regulations 1994 (Cth), s.2.41

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs (2003) 236 FCR 593

AXX16 & Minister for Immigration and Anor (2018) FCCA 2902

BYM16 v Minister for Immigration & Anor [2017] FCCA 2445

CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

DSY16 v Minister for Immigration and Border Protection (2018) 260 FCR 260

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 241

Singh v Minister for Home Affairs [2019] FCAFC 3

WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

FCAFC 319

W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703

Applicant:

CWX18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1563 of 2018

Judgment of:

Judge Humphreys

Hearing date:

26 August 2019

Date of Last Submission:

26 August 2019

Delivered at:

Parramatta

Delivered on:

26 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Zipser

Solicitors for the Applicant:

Stamford Law Firm

Counsel for the Respondents:

Ms Laing

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

Leave is refused to rely upon the amended application.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1563 of 2018

CWX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

The applicant came to Australia by boat in 2010. On 2 June 2011, the applicant was granted a Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (“the Act”). The visa was granted on the basis that the applicant was accepted as being a stateless Bidoon from Kuwait. On 25 June 2013, the applicant’s wife lodged a partner visa application, including four children. In so doing, she provided various Iraqi identity documents for herself and the four children.
A delegate cancelled the applicant’s visa on the basis that the applicant claimed in his visa application that he and his immediate family were stateless and…

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.

Keep reading for free

Create a free CaseChat account to read CWX18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2369
Decision Date: 26 August 2019

CaseChat Overview and Summary

The applicant, CWX18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a Subclass 866 (Protection) visa. The Minister for Immigration was the respondent. The core of the dispute revolved around allegations that the AAT had failed to give proper and genuine consideration to the applicant's evidence and had misunderstood relevant country information, thereby committing jurisdictional errors.

The court was required to determine whether the AAT had indeed made jurisdictional errors in its assessment of the applicant's protection visa claim. Specifically, the court considered whether the Tribunal's evaluation of the evidence presented by CWX18 was adequate and whether its understanding of the country information pertinent to the applicant's circumstances was accurate. The applicant also sought leave to rely on an amended application, which the court had to consider.

Judge Humphreys found that no jurisdictional error had been made out. The court concluded that the AAT had given proper and genuine consideration to the applicant's evidence and had not misunderstood the relevant country information. The request to rely on the amended application was also denied. Consequently, the application for judicial review was dismissed.

Orders