FKV18 v Minister for Home Affairs - [2019] FCCA 1572

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKV18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1572

Catchwords:
MIGRATION – Application for protection visa – inconsistencies in claims made by applicant – adverse credibility findings – country information at odds with claims made by applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2), 476(1)

Cases cited:

Prasad v MJEA (1985) 5 FCR 155

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

FKV18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 1057 of 2018

Judgment of:

Judge Egan

Hearing date:

28 May 2019

Date of Last Submission:

28 May 2019

Delivered at:

Brisbane

Delivered on:

28 May 2019

REPRESENTATION

Applicant:

In person

Solicitor for the First Respondent:

Ms Rayment, Solicitor of Sparke Helmore

ORDERS

That the amended application for review filed on 4 February 2019 be dismissed.
That the applicant pay the first respondent’s costs of and incidental to the application for review and the amended application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1057 of 2018

FKV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan. He arrived in Australia as the holder of a Student (Class TU) (Subclass 572) Visa on 28 January 2013. On 6 March 2013 the applicant applied for a Protection Visa (Class XA) (Subclass 866). On 22 October 2015, a delegate of the Minister refused to grant to the applicant the protection visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations.
On 20 November 2015, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 March 2018, the Tribunal invited the applicant to attend the hearing before it. That hearing proceeded on 6 June 2018. It was noted that the applicant provided the Tribunal with a lengthy submission and evidence in support of the review application.
On 20 September 2018, the Tribunal affirmed the decision of the delegate not to grant to the applicant the visa.
On 12 October 2018, the applicant made application for review of the decision of the Tribunal pursuant to the provisions of section 476(1) of the Migration Act1958 (Cth)(‘the Act’).
At [5] and [6] of the reasons of the Tribunal, it was noted that in a statement provided by the applicant with his application, the applicant had stated that his Shia Hazara ancestors had migrated to the Punjab from Afghanistan many years ago as a result of political unrest and that after the killing of Osama bin Laden, militant Sunni groups had published an open letter addressed to Shias in Pakistan stating that religious scholars had issued a fatwa declaring Shias as infidels, and further stating…

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.

Keep reading for free

Create a free CaseChat account to read FKV18 v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 1572
Decision Date: 28 May 2019

CaseChat Overview and Summary

The applicant, FKV18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute centred on whether the applicant's claims of persecution were credible and whether the Minister had adequately considered all relevant information in reaching the decision. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were: (1) whether the Minister's decision was affected by jurisdictional error, specifically concerning the assessment of the applicant's claims of past persecution and real chance of future persecution; and (2) whether the Minister had failed to afford procedural fairness to the applicant by not adequately considering certain documentary evidence.

Judge Egan found that the Minister's delegate had failed to properly assess the applicant's claims of past persecution, particularly in relation to specific incidents described in the applicant's submissions. The court held that a failure to adequately consider material evidence, which is relevant to the assessment of a protection claim, can constitute a jurisdictional error. Furthermore, the court determined that the delegate's reasons for rejecting certain aspects of the applicant's evidence were not sufficiently articulated, thereby raising concerns about procedural fairness.

The court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders