FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESV17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2804 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied real risk test – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | ESV17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 40 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 October 2020 |
| Date of Last Submission: | 13 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr J Papalia |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 40 of 2020
| ESV17 |
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 Malaysia. He arrived in Australia on a visitor visa on 9 February 2016 (Court Book (“CB”) 22).
On 25 April 2016, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-51).
The applicant claimed that, while in Malaysia, he was “in the frozen seafood business with a friend”, was required to go to a loan shark to obtain money and “his friend ran away”. He further claimed that the loan shark “constantly sent people to harass” him to pay the money back, imprisoned him and his wife – both of whom were tortured by waterboarding – and he was beaten “from time to time”. He claims that he fears harm from the loan shark if he returns to Malaysia.
On 6 July 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the protection visa (CB 66-84). Relevantly, the delegate found that the applicant could access protection from the Malaysian authorities and, as such, did not meet the criterion to be granted the visa.
On 21 July 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 85-86).
On 4 October 2017, the Tribunal gave an oral decision affirming the…
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- Case
- [2020] FCCA 2804
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Federal Court was whether the AAT had misapplied the "real risk" test when assessing the applicant's claims. This involved determining if the Tribunal had correctly applied the legal standard for establishing a well-founded fear of persecution or harm, which is a prerequisite for the grant of a protection visa.
Justice Kendall found that the AAT had not committed jurisdictional error in its application of the real risk test. The Court reasoned that the Tribunal had properly considered the evidence before it and applied the correct legal principles in reaching its conclusion. Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
ORDERS
1. The application be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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