EXV17 v Minister for Immigration - [2018] FCCA 1259

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1259

Catchwords:
MIGRATION – Judicial review – whether failure to properly consider all claims – whether denied an opportunity to comment on a claim – whether jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), Pt.7AA, ss.5H, 5J, 36, 46A, 473CB, 473DB, 473DC, 473DD, 473DF, 474, 476

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), Explanatory Memorandum

Cases cited:

Plaintiff M174/2016 v Minister for Immigration & Border Protection & Anor [2018] HCA 16

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant:

EXV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 601 of 2017

Judgment of:

Judge Lucev

Hearing date:

16 May 2018

Date of Last Submission:

16 May 2018

Delivered at:

Perth

Delivered on:

30 May 2018

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the First Respondent:

Mr PJ Corbould

Second Respondent:

Submitting appearance save as to costs

Solicitors for Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 601 of 2017

EXV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 9 November 2017 the applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”)…

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 1259
Decision Date: 30 May 2018

CaseChat Overview and Summary

The applicant, EXV17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to be a national of Afghanistan and alleged persecution by the Taliban. The Minister's delegate had refused the protection visa application, finding that the applicant had not established a well-founded fear of persecution. The Administrative Appeals Tribunal (AAT) affirmed this decision. The applicant then sought review of the AAT's decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to consider whether the AAT had failed to adequately consider all relevant evidence, including the applicant's personal circumstances and country information pertaining to Afghanistan. The Court also considered whether the AAT had applied the correct legal test for establishing a well-founded fear of persecution under the Migration Act 1958 (Cth).

Judge Lucev found that the AAT had made a jurisdictional error. The Court reasoned that the AAT had failed to properly engage with the applicant's evidence regarding his specific experiences and the general country information. The AAT's assessment was found to be superficial and did not demonstrate a proper understanding of the applicant's subjective fear and its objective basis. The Court reiterated the principle that an assessment of a well-founded fear requires a careful and holistic consideration of all available evidence, both subjective and objective, and that a failure to do so constitutes an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders