DFE16 v Minister for Immigration & Border Protection - [2017] FCCA 308

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFE16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 308

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error concerning the applicants relocation upon return to Afghanistan – whether the Tribunal did not properly consider the applicant’s well-founded fear of persecution in Afghanistan within the meaning of s.5J(1) of the Migration Act 1958 (Cth) – reasonable relocation does not arise under s.5J(1) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5(J)(1), 5M, 36(2), 36(2B),

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

Januzi v Secretary of State for the Home Department [2006] 2 AC 426

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; [2009] FCAFC 46

Articles and other material cited:

Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

Applicant:

DFE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2949 of 2016

Judgment of:

Judge Smith

Hearing date:

31 January 2017

Date of Last Submission:

31 January 2017

Delivered at:

Sydney

Delivered on:

10 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2949 of 2016

DFE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant is a citizen of Afghanistan who fled that country with his family when he was a child and went to live in Pakistan. He entered Australia on 15 November 2008 as the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa.
On 17 June 2013 the applicant was assessed by ASIO[1] as being a security risk in light of allegations that he was involved in people smuggling. As a consequence, the applicant’s visa was cancelled on 19 June 2013 and he was taken into immigration detention where he remains.
[1] Australian Security Intelligence Organisation.
On 30 April 2015 the applicant applied for a protection visa on the basis that he feared he would…

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 308
Decision Date: 10 March 2017

CaseChat Overview and Summary

DFE16 (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the respondent) 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 ethnicity and political opinions. The respondent had refused the visa on the grounds that the applicant did not meet the criteria for a protection visa, specifically concerning the assessment of their claims of persecution. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the respondent had properly considered the applicant's claims of persecution, including the assessment of the applicant's credibility and the objective country information relevant to their fears. The Court was required to determine if the decision-maker had applied the correct legal tests in assessing the applicant's claims under the *Migration Act 1958* (Cth) and relevant international conventions.

Judge Smith found that the respondent had failed to properly assess the applicant's claims regarding their ethnicity and political opinions. The Court reasoned that the decision-maker had not adequately considered the specific evidence provided by the applicant and had applied an incorrect standard in evaluating the credibility of the applicant's statements. The principles applied included the requirement for a decision-maker to undertake a comprehensive and objective assessment of all relevant evidence and to apply the correct legal framework for determining refugee status. The Court concluded that the decision was affected by jurisdictional error.

The Court ordered that the decision of the respondent be set aside and remitted to the respondent for reconsideration according to law.

Orders