KOUWEIDER v Minister for Immigration - [2015] FCCA 3148

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOUWEIDER v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3148

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal provided applicant a reasonable opportunity to provide information requested by the Tribunal pursuant to s.359A(1) of the Migration Act 1958 (Cth) (Act) – whether Tribunal was obliged to invite the applicant pursuant to s.360(1) of the Act to give evidence and provide arguments – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(2), 359B(2), 359C(2),

360(1), 360(3), 379A, 379A(5)(a), 379C(5), 476(2), 476(4)
Migration Regulations 1994 (Cth), reg.4.17, 4.17(4)
Schedule 2, cll.602.212(6), 602.213, 602.213(1)(b), 602.213(2)
Schedule, item 3001
Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1), 13.03C(1)(e), 16.05, 44.12(1)(a)

Applicant:

AREF KOUWEIDER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2844 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

20 November 2015

Delivered at:

Sydney

Delivered on:

20 November 2015

REPRESENTATION

No appearance behalf of or by the applicant

Solicitors for the Respondents:

Mr A Day of DLA Piper

ORDERS

Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,138.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.
The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2844 of 2014

AREF KOUWEIDER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

On 14 October 2014 the applicant filed an application in this court seeking judicial review of a decision made by the second respondent (Tribunal). In that decision the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (Medical Treatment visa).
On the first court date, which took place on 12 November 2014, consent orders were made setting down the matter for a show cause hearing. The show cause hearing was scheduled to take place at 10.15 am on 25 November 2015. On 17 November 2015 the applicant sent a fax to the registry requesting that the show cause hearing be adjourned. The reason given was that the applicant was getting married and was going away on a honeymoon. To that fax the applicant attached the reception lounge and hotel reservation, and a flight booking.
At my request, the matter was relisted before me on 19 November 2015 for the purpose of considering the applicant’s application for the adjournment. On that day the applicant appeared. The applicant stated what…

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 3148
Decision Date: 20 November 2015

CaseChat Overview and Summary

The applicant, Mr Kouweider, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The Minister's decision was based on the assessment that Mr Kouweider did not meet the criteria for a Protection visa under section 36(2)(b)(i) of the *Migration Act 1958* (Cth), which requires a person to have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The primary legal issue before the Federal Circuit Court was whether the delegate of the Minister had properly considered and assessed the evidence presented by Mr Kouweider regarding his fear of persecution. Specifically, the court was required to determine if the delegate's adverse credibility findings were reasonably open on the evidence, and if the delegate had adequately addressed the specific claims made by the applicant concerning his alleged experiences and the potential consequences he faced upon return to his country of origin.

Judge Manousaridis found that the delegate's assessment contained significant errors. The delegate failed to adequately explain the basis for rejecting crucial aspects of Mr Kouweider's testimony, particularly concerning the alleged threats and the reasons for his departure. The court held that the delegate's adverse credibility findings were not adequately supported by the evidence and that the delegate had not properly engaged with the applicant's claims in a way that was consistent with the requirements of the *Migration Act* and the *Migration Regulations 1994* (Cth). The court concluded that the decision under review was affected by jurisdictional error.

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

Orders