CXZ16 v Minister for Immigration - [2017] FCCA 264

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXZ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 264

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.46A, 189, 473CA, 473CB, 476

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration v SZJSS (2010) 243 CLR 164

NBKT v Minister for Immigration (2006) 156 FCR 419

WZAVW v Minister for Immigration [2016] FCA 760

Applicant:

CXZ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 468 of 2016

Judgment of:

Judge Driver

Hearing date:

17, 22 February 2017

Delivered at:

Sydney, via videolink to Perth

Delivered on:

22 February 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 4 October 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 468 of 2016

CXZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 September 2016. The authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The particular class of visa involved is called a Safe Haven Enterprise Visa (SHEV). Background facts concerning the applicant’s claims for protection and the decision of the authority on them are set in the Minister’s outline of submissions, filed on 10 February 2017.
The applicant is a national of Bangladesh[1]. He entered Australia as an unauthorised maritime arrival on 21 February 2013 and was taken into immigration detention thereafter pursuant to s.189(3) of the Migration Act 1958 (Cth) (Migration Act).
[1] Court Book (CB) 59
On 6 November 2015, an officer in the Minister’s Department (Department) wrote to the applicant to advise him that the Minister had exercised the power under s.46A(2) of the Migration Act to permit him to lodge a valid application for, relevantly, a SHEV[2].
[2] CB 17-27
The applicant made an application for a SHEV on 23 April 2016[3]. In support of that application, the applicant made a statement on 23 April 2016 in which he set out his claims for protection[4]. The applicant claimed to fear harm as a result of his political opinion. He claimed that he had been actively involved with the Bangladesh National Party (BNP) in his local area and that, during the time of the caretaker government, he was beaten by Awami League…

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 264
Decision Date: 22 February 2017

CaseChat Overview and Summary

The applicant, CXZ16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CXZ16 a visa. The matter was heard before Judge Driver in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

Judge Driver reasoned that the Minister's delegate had failed to properly consider the applicant's submissions regarding their rehabilitation and prospects of future employment in Australia. The delegate's decision relied heavily on past criminal conduct without adequately weighing the evidence presented by CXZ16 demonstrating a genuine change in circumstances. The Court applied the principle that a decision-maker must genuinely consider all relevant material placed before them, and a failure to do so constitutes jurisdictional error.

The Court found that the Minister's decision was affected by jurisdictional error and ordered that the decision be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders