DUN16 v Minister for Immigration - [2020] FCCA 601

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUN16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 601

Catchwords:
MIGRATION – Application for protection visa – inconsistencies in applicant’s claims – country information supportive of there being no well-founded fear of persecution should the applicant be returned to country of origin – findings of Authority open on the evidence before it – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 46A(2), 473CA, 473CB, 473DC, 476

Cases cited:

Applicant:

DUN16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 662 of 2018

Judgment of:

Judge Egan

Hearing dates:

11 October 2019, 28 February 2020

Date of Last Submission:

28 February 2020

Delivered at:

Brisbane

Delivered on:

19 March 2020

REPRESENTATION

Applicant:

Self-represented

Solicitors for the First Respondent:

Ms Ladhams, Solicitor for AGS

Second Respondent:

Submitting appearance

ORDERS

The amended application for review filed on 25 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 662 of 2018

DUN16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Iran who arrived at Christmas Island as an unauthorised maritime arrival on 29 September 2012.
On 27 October 2015 the Minister exercised power pursuant to the provisions of s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) so as to allow the applicant to lodge an application for a protection visa.
The applicant lodged an application for a protection visa on 17 February 2016.
The applicant participated in a protection visa interview which was held on 12 July 2016.
On 5 August 2016 a delegate of the Minister refused to grant to the applicant a protection visa.
The applicant’s matter was automatically referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions of s.473CA of the Act.
On 11 November 2016 the Authority affirmed the delegate’s decision not to grant to the applicant a protection visa.
On 11 December 2018 the applicant filed an application for review of the decision of the Authority pursuant to the provisions of s. 476 of the Act.
On the 11^th day of October 2019, it was ordered by this court that the applicant file an amended application for review which provided…

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: [2020] FCCA 601
Decision Date: 19 March 2020

CaseChat Overview and Summary

The applicant, DUN16, sought judicial review of a decision by the Minister for Immigration to refuse their application for a protection visa. The Administrative Appeals Tribunal had previously affirmed the Minister's decision, finding that the applicant's claims contained inconsistencies and that country information did not support a well-founded fear of persecution upon return to their country of origin.

The central legal issue before Judge Egan was whether the Tribunal's findings were "open on the evidence" before it. This required an assessment of whether the Tribunal's factual conclusions, particularly regarding the credibility of the applicant's claims and the assessment of country information, were reasonably open to it, or if they were affected by an error of law.

Judge Egan reasoned that the Tribunal was entitled to find inconsistencies in the applicant's account and to rely on the country information presented. The Tribunal's role was to assess the evidence and make findings of fact, and its conclusions were not demonstrably irrational or illogical. Therefore, the Tribunal's decision to dismiss the application for a protection visa was open on the evidence before it. The application for judicial review was dismissed.

Orders