DRN16 v Minister for Immigration - [2018] FCCA 948

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRN16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 948

Catchwords:
MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – refusal of a Protection Visa – alleged legal unreasonableness – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 476(1)

Cases cited:

Applicant:

DRN16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 589 of 2016

Judgment of:

Judge Kendall

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Perth

Delivered on:

19 April 2018

REPRESENTATION

Applicant:

In person

Advocate for the Respondents:

Mr A Burgess

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The originating application filed 30 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 589 of 2016

DRN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 30 November 2016, the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the “Tribunal”), dated 14 November 2016.
The Tribunal affirmed a decision of a delegate (the “delegate”) of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), made on 15 December 2014 to refuse the applicant’s application for a Protection (Class XA) visa (the “visa”). The applicant’s visa application was made on 30 May 2013.
This proceeding is brought pursuant to s. 476(1) of the Migration Act 1958 (Cth) (the “Migration Act”). To obtain relief from the court, the onus is on the applicant (who was unrepresented before this court) to show jurisdictional error on the part of the Tribunal.

Synopsis

For the reasons that follow, this application for judicial review fails and is accordingly dismissed.

Background Facts

The court had before it a court book numbering 291 pages (“CB”). The applicant, who was fluent in English and who presented as articulate and well organised before the court, had a copy of the CB and referenced it throughout his oral submissions.
At the hearing of this matter, counsel for the Minister indicated…

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 DRN16 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 948
Decision Date: 19 April 2018

CaseChat Overview and Summary

DRN16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution on the basis of his imputed political opinion and his membership of a particular social group. The delegate of the Minister had refused the protection visa application, finding that the applicant's claims were not credible and that he would not be at risk of persecution if returned to Iran. The applicant then sought review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence relating to his claims of imputed political opinion and membership of a particular social group. The applicant contended that the delegate's adverse credibility findings were not open on the evidence and that the delegate had failed to apply the correct legal test for assessing the risk of persecution.

In her Honour's reasoning, Judge Kendall found that the delegate had indeed made jurisdictional error. Her Honour determined that the delegate's assessment of the applicant's claims was superficial and lacked adequate reasoning. The delegate had failed to engage with significant portions of the evidence presented by the applicant, including expert reports and country information, which supported his claims. Furthermore, the delegate's adverse credibility findings were not adequately explained or supported by the material before her. Her Honour applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant V2019/15398 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, emphasizing the need for a thorough and reasoned assessment of all relevant evidence when determining claims for protection visas.

Consequently, Judge Kendall set aside the delegate's decision and remitted the application for a protection visa to the respondent for reconsideration according to law.

Orders