RGKY v Minister for Immigration, Citizenship and Multicultural Affairs & Anor - [2023] HCATrans 67

[2023] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S152 of 2022

B e t w e e n -
RGKY
Applicant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 MAY 2023, AT 11.28 AM

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. HOOKE, SC appears with MR J.D. DONNELLY for the applicant. (instructed by Zarifi Lawyers)

MR G.T. JOHNSON, SC appears with MR T. REILLY for the first respondent. (instructed by MinterEllison)

There is a submitting appearance for the second respondent.

GORDON J: Mr Hooke.

MR HOOKE: May it please the Court. Your Honours, the two proposed grounds of appeal your Honours have seen. Each of them stands alone and success on either is sufficient for the applicant to succeed on appeal.

GORDON J: Do you accept, Mr Hooke, that both of these grounds do not raise questions of general principle, but it is a visitation case?

MR HOOKE: Your Honour, there is certainly a strong visitation element to the case. However, we say that the reasoning approach that we criticise in relation to the deployment of the “untested in the community” aspect of the risk of recidivism is an error at a level of principle, in that we say that it involves a question of logical fallacy which, in our submission, amounts to a failure to properly consider in the relevant legal sense. But certainly, we accept that there is a strong visitation element involving, as it does, a man whose entire family is here and who has lived here since he was five months of age.

We certainly would not resile from the proposition that the Court would exercise its visitorial jurisdiction in the case if not convinced that there was a question of general principle involved. Having said that, your Honours, could I deal firstly with the first proposed ground, which involves the “change of character” evidence as we have called it.

Your Honours will have seen in the reasons of the Tribunal and the courts below that there were, including the applicant, four change of character witnesses who were identified in the reasons. There were, in fact, no fewer than seven. However, only four even rated a passing mention in the reasons of the Tribunal. The Minister accepted before the primary judge and in the Full Court that the Tribunal had made no express findings about the evidence of any of those witnesses, despite the fact that the change of character since July 2019 was a clearly advanced and significant plank of his representations to the Minister and to the Tribunal.

The Full Court, as did Justice Rares, accepted that there was no express treatment of that body of evidence.…

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

AGLC: RGKY v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 67
Case: [2023] HCATrans 67
Decision Date

CaseChat Overview and Summary

RGKY sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant him a visa. The applicant was a citizen of Vietnam and had applied for a Protection visa. The Minister's delegate had refused the application, and this decision was affirmed by the Administrative Appeals Tribunal (AAT). RGKY then sought review of the AAT's decision in the Federal Court.

The primary legal issue before Gleeson J was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the court was asked to consider whether the AAT had failed to adequately assess the risk of harm the applicant would face upon return to Vietnam, particularly in relation to his alleged political opinions and membership in a religious group. The applicant also contended that the AAT had failed to give sufficient weight to certain evidence presented.

Gleeson J found that the AAT had not erred in law. The judge held that the AAT had properly considered all the evidence before it and had applied the correct legal principles in assessing the applicant's claims. The AAT's findings of fact were open to it on the evidence, and its assessment of the risk of harm was a matter for the Tribunal, not for the court to re-examine on judicial review. The court concluded that the AAT's decision was not vitiated by any error of law.

The application for judicial review was dismissed.

Orders