Giri v Minister for Immigration - [2015] FCCA 88

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 88

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether Tribunal failed to comply with the rules of natural justice by failing to provide a document to the applicants – whether Tribunal misconstrued Public Interest Criterion 4020 of Schedule 4 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider evidence – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 357A, 359A, 362A, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 4

Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92

SZBYR v Minister for Immigration and Border Protection & Anor [2007] HCA 26
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223

First Applicant:

AMIT SHANKAR GIRI

Second Applicant:

ASHMA SHAH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 673 of 2014

Judgment of:

Judge Nicholls

Hearing date:

21 August 2014

Date of Last Submission:

21 August 2014

Delivered at:

Sydney

Delivered on:

16 January 2015

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman of Newman & Associates

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 18 March 2014 and amended on 5 August 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $ 9223.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 673 of 2014

AMIT SHANKAR GIRI

First Applicant

ASHMA SHAH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2014 and amended on 5 August 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 20 February 2014 which affirmed the decision of the Minister’s delegate not to grant Student (Temporary) (Class TU) visas to the applicants.

Background

Mr Amit Shankar Giri (“the applicant”) and his wife, Ms Ashma Shah (“the second applicant”), are both citizens of Nepal. They arrived in Australia on 18 February 2008 as holders of Student visas. The applicant applied for another subclass 572 visa (“the visa”) on 29 May 2012. His wife applied as a member of his family (CB 1 to CB…

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: [2015] FCCA 88
Decision Date: 16 January 2015

CaseChat Overview and Summary

Giri (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection Visa (Class XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, and this decision was affirmed by the Administrative Appeals Tribunal (AAT). 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 by failing to adequately consider the applicant's claims of persecution based on his membership of the Hazara ethnic group and his religious beliefs. Specifically, the Court had to determine if the AAT had properly applied the principles of international protection as outlined in the *Migration Act* and relevant international conventions, particularly concerning the assessment of risk of harm in the applicant's country of origin.

Judge Nicholls found that the AAT had failed to properly assess the risk of harm to the applicant. The Tribunal had not adequately considered the evidence regarding the general situation of Hazaras in Afghanistan and had not sufficiently engaged with the applicant's specific claims of past persecution and well-founded fear of future persecution. The Court held that the AAT's reasoning was deficient in its assessment of the objective circumstances of risk and its application of the "real chance" test for well-founded fear.

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