EDQ16 v Minister for Immigration - [2018] FCCA 1752

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDQ16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1752

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal misunderstood or misinterpreted evidence – whether Tribunal failed to consider evidence of applicant – whether Tribunal made arbitrary findings – whether findings illogical, irrational or unreasonable – application dismissed.

Legislation:

Indo-Nepal Treaty of Peace and Friendship Act

Migration Act 1958 (Cth), ss.5H, 5J, 36(3), (4), (5) & (5A) and 65

Cases cited:

Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 136 ALD 508

V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018

Applicant:

EDQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 646 of 2016

Judgment of:

Judge Heffernan

Hearing date:

7 May 2018

Date of Last Submission:

7 May 2018

Delivered at:

Adelaide

Delivered on:

3 July 2018

REPRESENTATION

The Applicant:

In person with an interpreter

Solicitors for the Respondents:

Mr W Evans for the Australian Government Solicitors

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

PEG 646 of 2016

EDQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for constitutional writs in relation to a decision of the second respondent dated 15 November 2016. That decision affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant raises three grounds of application as follows:
“1.Decision maker made jurisdictional errors in conclusions based on wrong interpretations/understandings in paragraphs 13, 27, 30, 63, 74.
2.Arbitrary conclusions made in decision based on available information rather than based on evidence provided by the applicant, making the decision unfair to the applicant.
3.If proper consideration not given to the claims, the applicant face significant harm and even death if return back to the country of origin.”
(Re-produced verbatim)
The grounds of application were handwritten. It was not apparent to me whether the second of the paragraphs of which the applicant complains in ground 1 should read ‘27’ or ‘29’. As will be seen, I have considered both of those paragraphs.
On 16 March 2017, a Registrar of the Court gave the applicant leave to file and serve any amended application by 28 July 2017. Leave was also given to the applicant to file and serve further materials, including the transcript of the proceedings, if he sought to rely on such material. Finally, the applicant was ordered to file and serve an outline of submissions at least 10 days prior to the hearing in this matter. No amended application, further materials, or…

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 1752
Decision Date: 3 July 2018

CaseChat Overview and Summary

The applicant, EDQ16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Heffernan in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the applicant's subjective fear of persecution was objectively reasonable, given the country information available at the time of the decision. Specifically, the court had to determine if the applicant's fear of harm due to their alleged membership in a particular social group was well-founded, considering the Minister's assessment of the risk of harm in the applicant's country of origin.

Judge Heffernan applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*. The court considered the applicant's personal circumstances, their stated reasons for fearing persecution, and the objective country information. The judge found that the applicant had not discharged the onus of establishing a well-founded fear of persecution for a Convention reason, as the available country information did not support the likelihood of the applicant facing harm as alleged. The court concluded that the Minister's decision was not affected by jurisdictional error.

Orders