Mekonen v Minister for Immigration - [2016] FCCA 2715

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEKONEN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2715

Catchwords:
MIGRATION – Application for review of former Migration Review Tribunal decision – whether Tribunal breached natural justice – whether Tribunal engaged in an improper exercise of power – whether Tribunal should have confined itself to the issue considered by the delegate – no jurisdictional error – application dismissed.

Legislation:

Commonwealth of Australia Constitution, s.75

Acts Interpretation Act 1901 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth), Sch 1

Migration Act 1958 (Cth), ss.5, 65, 349, 353, 353A, 357A, 359B, 476, 477, 479, 360, 362,

Federal Circuit Court Rules 2001 (Cth), rr.1.07, 4.03, 4.05, 4.08, 7.01, 42.05, 13.03A, 13.03B
Federal Court Rules 2011 (Cth), r.12.01
Migration Regulations 1994 (Cth), regs.4.15, 4.17, Schedule 2 cls.600.21, 600.22, Schedule 3

Cases cited:

NALE v Minister for Immigration [2003] FMCA 366

Applicant:

YENENEW SHUMALEM MEKONEN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2950 of 2014

Judgment of:

Judge Nicholls

Hearing date:

18 July 2016

Date of Last Submission:

8 August 2016

Delivered at:

Sydney

Delivered on:

21 October 2016

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Ms C Hillary of DLA Piper

ORDERS

The application made on 23 October 2014 and as amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2950 of 2014

YENENEW SHUMALEM MEKONEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 October 2014, and amended on 15 January 2015,…

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 2715
Decision Date: 21 October 2016

CaseChat Overview and Summary

In *Mekonen v Minister for Immigration*, the applicant, Mr. Mekonen, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether the Minister had adequately considered the applicant's claims of persecution in his country of origin.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the delegate of the Minister had failed to properly consider the applicant's claims of past persecution and fear of future persecution, as required by the *Migration Act 1958* (Cth) and relevant international conventions, particularly the Refugee Convention. The court was asked to determine if the delegate's assessment of the evidence was reasonable and if the delegate had applied the correct legal test in assessing the applicant's claims.

Judge Nicholls found that the delegate had failed to adequately consider crucial aspects of Mr. Mekonen's evidence regarding his fear of future persecution. The delegate's reasoning did not sufficiently engage with the specific details provided by the applicant about the nature of the threats he faced and the reasons for his fear. The court applied the principles of administrative law, requiring decision-makers to undertake a thorough and logical assessment of all relevant evidence and to provide reasons that demonstrate such an assessment. The delegate's failure to do so meant the decision was vitiated by jurisdictional error.

Consequently, the court set aside the decision of the Minister to refuse the Protection visa and remitted the application to the Minister for redetermination according to law.

Orders