Jean v Minister for Immigration - [2016] FCCA 1029

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1029

Catchwords:
MIGRATION – Review of a decision of the Second Respondent – application for a Skilled Business (Long Stay) (Class VC) (Subclass 457) visa – no jurisdiction of the Tribunal to hear the review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 338, 338(2)(d), 338(2)(d)(i), 338(2)(d)(ii), 412

Migration Regulations 1994 (Cth), cls. 456.211, 457.211(b)(ii), 457.223(4)(a), Sch. 3: criterion 3004

Cases cited:
Ahmad v The Minister for Immigration and Border Protection [2015] FACFC 182
Damore v Minister for Immigration and Border Protection [2015] FCCA 1289

Minister for Immigration and Border Protection v Lee [2014] FCCA 2881

First Applicant:

JOSEPH BENOIT LOUIS JEAN

Second Applicant:

MARIE NATHALIE LOUIS JEAN

Third Applicant:

LARAL DIDIER LOUIS JEAN

Fourth Applicant:

ADRIANO BENOIT LOUIS JEAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1755 of 2015

Judgment of:

Judge Hartnett

Hearing date:

15 April 2016

Delivered at:

Melbourne

Delivered on:

15 April 2016

REPRESENTATION

The First Applicant:

In Person

The Third Applicant:

In Person

Counsel for the First Respondent:

Mr Young

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1755 of 2015

JOSEPH BENOIT LOUIS JEAN

First Applicant

MARIE NATHALIE LOUIS JEAN

Second Applicant

LARAL DIDIER LOUIS JEAN

Third Applicant

ADRIANO BENOIT LOUIS JEAN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application filed 28 July 2015 by the Applicants seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 July 2014 where the Tribunal found that it did not have jurisdiction in the matter.
The grounds of application are as follows:
“1. Tribunal failed to take the facts of application without giving me any sufficient opportunities to justify my claim.
2. Tribunal determined that they have no jurisdiction without following the principle of natural justice, I plead a Court hearing to set aside the tribunal decision.”
As can be seen from the above, no particulars of the grounds of application are pleaded.
By orders made by Registrar Allaway on 20 January 2016, the Applicants were ordered to file and serve any amended application, including any additional grounds of review with complete particulars of each ground and any affidavits, together with written submissions. The Applicants have not amended the grounds of application, provided particulars and nor have they filed any written submissions.
The First Respondent relies upon the response dated 10 August 2015 wherein the First Respondent opposes the making of the orders as sought in the application filed and seeks dismissal of the application, on the basis that the application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal…

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: [2016] FCCA 1029
Decision Date: 15 April 2016

CaseChat Overview and Summary

Jean (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant her a protection visa. The applicant, who is of Vietnamese origin, claimed to fear persecution in Vietnam due to her membership of a particular social group, specifically, women who have been victims of sexual assault and who have subsequently reported their assaults to the authorities. The matter came before the Federal Court of Australia.

The central legal issue before the Court was whether the applicant's claimed fear of persecution was well-founded, such that she met the criteria for a protection visa under the *Migration Act 1958* (Cth). This required the Court to consider whether the applicant's membership in the identified social group constituted a "real chance" of persecution for a Convention reason, and whether the respondent's assessment of the evidence and the country information was reasonable.

Judge Hartnett considered the evidence presented by the applicant, including her personal account of sexual assault and the subsequent reporting of that assault in Vietnam. The Court also examined the country information relating to Vietnam, particularly concerning the treatment of women who report sexual assault and the potential for them to face further harm or discrimination from authorities or society. The Court applied the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Ethnic Affairs*, focusing on the objective assessment of a real chance of persecution, rather than mere possibility. The Court found that the applicant had established a well-founded fear of persecution based on her membership in the specified social group.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders