Eas16 v Minister for Immigration - [2020] FCCA 2545

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAS16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2545

Catchwords:
MIGRATION – Application for Protection visa – claims of irrationality and unreasonableness not made out – no failure on the part of the Tribunal to correctly consider what constituted a well-founded fear of persecution – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65.

Cases cited:

BJI17 v Minister for Home Affairs [2020] FCAFC 58.

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Minister for Immigration and Border Protection v Pandey [2014] FCA 640.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR

379.

Applicant:

EAS16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2797 of 2016

Judgment of:

Judge Egan

Hearing date:

9 September 2020

Date of Last Submission:

9 September 2020

Delivered at:

Brisbane

Delivered on:

11 September 2020

REPRESENTATION

Solicitors for the Applicant:

Mr D Harvey of David Harvey Law

Solicitors for the First Respondent:

Mr S Cummings of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application filed on 17 August 2020 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

MLG 2797 of 2016

EAS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Pakistan who arrived in Australia on 9 August 2012 as an unauthorised maritime arrival. On 27 September 2012, the applicant participated in an entry interview.
On 9 December 2012, the applicant applied for a Protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’).
On 22 September 2014, a delegate of the Minister refused to grant the visa application, after which the applicant sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’).
The applicant appeared before the Tribunal at a review hearing conducted on 21 September 2016, at which time he was represented by a migration agent. The applicant was also assisted by an interpreter fluent in the Pashto/Pushtu and English languages.
On 30 November 2016, the Tribunal affirmed the decision of the delegate.
On 22 December 2016, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before the Court, the applicant relied upon the grounds for review as set out in an Amended Application for Review…

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 2545
Decision Date: 11 September 2020

CaseChat Overview and Summary

The applicant, Eas16, sought judicial review of a decision by the Minister for Immigration to refuse their application for a protection visa. The core of the dispute concerned whether the Administrative Appeals Tribunal (AAT) had made a jurisdictional error in its assessment of Eas16's claims of a well-founded fear of persecution. The matter came before Judge Egan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had failed to correctly consider what constitutes a well-founded fear of persecution, thereby committing a jurisdictional error. Eas16 also contended that the Tribunal's decision was irrational and unreasonable.

Judge Egan found that the AAT had correctly considered the relevant legal principles and the evidence before it in assessing Eas16's claims. The Court determined that the applicant had not established that the Tribunal failed to correctly consider the elements of a well-founded fear of persecution. Furthermore, the grounds of irrationality and unreasonableness were not made out. Consequently, no jurisdictional error was established.

The application for judicial review was dismissed.

Orders