Nain v Minister for Immigration - [2015] FCCA 2053

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAIN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2053

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal ––whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to have regard to relevant material in its consideration of the applicant’s claims and in the consideration of PIC4020 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 476

Migration Regulations 1994 (Cth), reg.1.03, Schedule 2, Schedule 4

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant:

AMIT NAIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 434 of 2014

Judgment of:

Judge Nicholls

Hearing date:

11 June 2015

Date of Last Submission:

11 June 2015

Delivered at:

Sydney

Delivered on:

31 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr R Nair (by direct access)

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 25 February 2014 and amended on 17 April 2015 and further amended on 22 June 2015 is dismissed.
The applicant pay the first respondent’s cost set in the amount of $6646.00 .

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 434 of 2014

AMIT NAIN

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 Act1958 (Cth) (“the Act”) on 25 February 2014 and amended on 17 April 2014 and further amended on 22 June 2015, seeking review of the decision of the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) made on 29 January 2014 which affirmed the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”) to Mr Amit Nain (“the applicant”).
In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister, and the affidavit of Ms Alice Martha Bishop-Ebiember of 7 March 2015, secretary, annexing a transcript of the hearing before the Tribunal on 18 November 2013 (“T”).

Background

The applicant applied for the visa on 26 November 2012 (CB 1). There was no indication on the visa application form that the applicant had appointed any representative to assist him. The applicant indicated that he had had no assistance in completing the form (CB 3).…

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 2053
Decision Date: 31 July 2015

CaseChat Overview and Summary

In *Nain v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought to challenge this refusal in the Federal Court.

The primary legal issue before the Court was whether the delegate's decision, as affirmed by the Tribunal, had failed to properly consider the applicant's claims of persecution, particularly in light of the subjective elements of the assessment. Specifically, the Court was asked to determine if the delegate had applied the correct legal test when assessing the real chance of the applicant suffering harm, and whether the delegate had adequately considered all relevant evidence presented by the applicant.

Judge Nicholls found that the delegate had made an error of law by failing to properly assess the subjective element of the applicant's fear. The Court held that the delegate had impermissibly conflated the objective and subjective aspects of the assessment, effectively requiring the applicant to prove the objective likelihood of harm rather than assessing whether there was a real chance of harm occurring based on the applicant's subjective fear and the available objective evidence. The Court reiterated the principle that the assessment of a real chance of persecution requires a consideration of both the subjective fear of the applicant and the objective circumstances.

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