Ded16 v Minister for Immigration - [2018] FCCA 3074

FEDERAL CIRCUIT COURT OF AUSTRALIA

DED16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3074

Catchwords:

MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – protection visa – whether Tribunal erred in applying s.36(3) of the Migration Act 1958 (Cth) – consideration of test – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(3)

Cases cited:

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77
MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384
Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50
V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77

Applicant:

DED16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2313 of 2018

Judgment of:

Judge Riethmuller

Hearing date:

24 August 2018

Date of Last Submission:

24 August 2018

Delivered at:

Melbourne

Delivered on:

24 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Peckham

Solicitors for the Applicant:

Asylym Seeker Resource Centre

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed 25 October 2016 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2313 of 2018

DED16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 29 September 2016 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Nepal. He arrived in Australia in 2009 on a student visa. During a subsequent visit to Nepal, various events took place, the result of which was that the applicant sought a protection visa. Before the Tribunal, the applicant’s claims that formed the basis for demonstrating that he was at real risk of serious harm if he were to return to Nepal, were accepted. The basis of those claims is not relevant to the issue before this Court today.
The Tribunal also had regard to s.36(3) of the Migration Act 1958 (Cth), which provides as follows:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
In this case, the Tribunal turned to consider the 1950 Treaty of Peace and Friendship between India and Nepal, which provides for…

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 3074
Decision Date: 24 August 2018

CaseChat Overview and Summary

The applicant, Ded16, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning an application for a protection visa. The central dispute revolved around the AAT's application of section 36(3) of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia before Judge Riethmuller.

The court was required to determine whether the AAT had erred in its application of the test prescribed by section 36(3) of the *Migration Act 1958* (Cth) when assessing the applicant's claim for a protection visa. This involved scrutinising the Tribunal's findings and reasoning in relation to the criteria for granting such a visa.

Judge Riethmuller found that the AAT had correctly applied the relevant legal principles and the statutory test under section 36(3). The Tribunal's assessment of the evidence and its conclusions were found to be open to it on the material before it, and no error of law was identified. Consequently, the application for judicial review was dismissed.

Orders