Pharikan v Minister for Immigration - [2018] FCCA 1453

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHARIKAN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1453

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – allegation of an apprehension of bias – whether the Tribunal applied the wrong test – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 476

Migration Regulations 1994 (Cth), regs.1.09A, 1.15A, sch. 2, cl.801.221

Cases cited:

Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982
MZAEU v Minister for Immigration and Border Protection[2016] FCAFC 100; (2016) 70 AAR 22
SZRUI v Minister for immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328, (2004) 214 ALR 264
Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 125 ALD 481

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341
Re Refugee Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 62 ALD 285
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22
Truong v Minister for Immigration & Anor [2018] FCCA 497
He v Minister for Immigration and Border Protection [2017] FCAFC 206

Applicant:

PHINIT PHARIKAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 259 of 2016

Judgment of:

Judge Nicholls

Hearing date:

12 April 2018

Date of Last Submission:

12 April 2018

Delivered at:

Sydney

Delivered on:

8 June 2018

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner of Turner Coulson Immigration Lawyers

Solicitors for the Respondents:

Mr W Sharpe of Minter Ellison

ORDERS

The application made on 8 February 2016 and amended on 12 April 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 259 of 2016

PHINIT PHARIKAN

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 8 February 2016 and amended on 12 April 2018 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the grant of a Partner (Residence) (Class BS) visa to Mr Phinit Pharikan.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Mary Elinor Corkhill made on 9 September…

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: [2018] FCCA 1453
Decision Date: 8 June 2018

CaseChat Overview and Summary

Pharikan (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was from Iran, claimed to fear persecution upon return to his home country. The Minister's delegate had refused the application, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa. The matter came before Judge Nicholls in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa application was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate had failed to adequately assess the applicant's claims of persecution, particularly in relation to his alleged fear of being conscripted into the Iranian military and subsequently being forced to fight against his religious group. The applicant argued that the delegate had overlooked or undervalued crucial aspects of his evidence and had not properly considered the objective country information relevant to his situation.

Judge Nicholls reasoned that the delegate's assessment of the applicant's claims had been flawed. The Court found that the delegate had not adequately engaged with the applicant's evidence regarding his fear of conscription and the potential consequences of such conscription, given his religious beliefs. The delegate's reliance on general country information without sufficiently applying it to the specific circumstances of the applicant's case was also found to be a material error. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to undertake a proper and logical assessment of all relevant evidence and to provide adequate reasons for their decision.

The Court concluded that the delegate's decision contained jurisdictional error. Accordingly, Judge Nicholls set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders