CZY16 v Minister for Immigration - [2018] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZY16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 467

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant protection visa – whether given the Tribunal found the applicant did not face a real chance of serious harm it was required to make a finding about whether the applicant had a subjective fear of significant harm – whether it was reasonably open to the Tribunal not to be satisfied that being required by criminal gangs to make donations did not constitute degrading treatment or punishment – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.5, 36(2)(aa), 36(2A)

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Selliah v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [1999] FCA 615

Applicant:

CZY16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2798 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

22 February 2018

Date of Last Submission:

22 February 2018

Delivered at:

Sydney

Delivered on:

2 March 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents:

Ms J Strugnell of Minter Ellison Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2798 of 2016

CZY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a national of Nepal, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

In his application for a Protection visa (Form of Application) the applicant said he was a Maoist and he left Nepal because he received a death threat from members of the Nepali Congress Party (NCP), whom the applicant described as his “political opponents”.[1] The applicant claimed that in June 2001, when living in his village, he became friendly with members of the Maoist Party (also referred to as the “United Communist Party of Nepal” (UCPN)) The applicant became interested in the ideas and policies of the Maoist Party and began reading books provided by that party. He became a member of the Nepal Communist Party in April 2002. The applicant said he worked as a campaigner and activist of the Maoist Party in his village. His role was basically to “spread general awareness about Maoist Party activities at informal communal gatherings in Myadgi”; and the applicant worked as a “messenger for the active members in the party when they wanted to arrange meeting in the villages”. The applicant was “harassed and persecuted by the police and supporters of Nepali opposition political parties, mainly the Nepalese Congress Party and National Democratic Party”. 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.

Keep reading for free

Create a free CaseChat account to read CZY16 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: [2018] FCCA 467
Decision Date: 2 March 2018

CaseChat Overview and Summary

The applicant, CZY16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. 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 Court of Australia.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the likelihood of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in relevant case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the assessment of real chance of persecution.

Judge Manousaridis found that the Tribunal had made an error of law in its interpretation and application of the "particular social group" criterion. The Court reasoned that the Tribunal had failed to adequately consider the applicant's evidence and had applied an overly narrow construction of what constitutes a particular social group, contrary to established jurisprudence. The Court held that the Tribunal's findings were not open to it on the evidence before it and that its conclusion that the applicant did not belong to a particular social group was therefore vitiated by legal error.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders