CYR16 v Minister for Immigration - [2018] FCCA 3371

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYR16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3371

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a protection visa – applicant asserted that Administrative Appeals Tribunal did not consider all his claims and that its decision was thereby affected by jurisdictional error – Tribunal did consider all claims – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 424AA, 438

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143

CPW16 v Minister for Immigration and Border Protection (2017) FCA 1210

Applicant:

CYR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2766 of 2016

Judgment of:

Judge Dowdy

Hearing date:

15 November 2018

Delivered at:

Sydney

Delivered on:

15 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms N. Laing of Counsel

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 10 October 2016 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2766 of 2016

CYR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant in this proceeding is a male citizen of Indonesia aged 25 years, having been born on 29 November 1992.
By Application filed in this Court on 10 October 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 14 September 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 March 2015 refusing to grant to the Applicant a Protection (Class XA) (subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

The Applicant arrived in Australia on 16 July 2014 as the holder of a Visitor (Class FA) (Subclass 600) visa. He applied for the Protection visa on 10 October 2014.

Claims for Protection

In his Protection visa application, he made the following claims to protection in answer to questions 43, 45, 46, 47, 48 and 49, as follows:
43.Why did you leave that country?
Corruption is a serious problem in Indonesia. I hate those corruptive government officers. They always ask money from us. My parents gave a lot of money for opening their small shop. I saw government officers asked my parents give money…

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: [2018] FCCA 3371
Decision Date: 15 November 2018

CaseChat Overview and Summary

The applicant, CYR16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister had properly considered all the relevant information and applied the correct legal principles in assessing the applicant's claims for protection. Specifically, the Court considered whether the delegate had failed to adequately assess the risk of harm to the applicant in their country of origin, and whether the delegate's findings were supported by the evidence.

Dowdy J found that the delegate had made a jurisdictional error in their assessment of the applicant's claims. The Court reasoned that the delegate had failed to properly consider crucial aspects of the applicant's evidence regarding past persecution and the real chance of future persecution. The delegate's reasoning was found to be illogical and not supported by the evidence before them, leading to an erroneous conclusion. The Court applied principles of administrative law concerning the proper exercise of statutory power and the requirement for decision-makers to engage with and properly assess all relevant evidence.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders