AAE16 v Minister for Immigration - [2017] FCCA 2667

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAE16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2667

Catchwords:
MIGRATION – Application in a case to reinstate proceeding – protection visa application – applicants travel from Malaysia to Australia on valid passports and electronic travel documents – applicants lodge protection visa application – fears of harm by reason of intolerance for applicant’s Buddhist religion and Chinese ethnicity – applicants fail to attend Departmental interview – delegate refuses applications grounding decision on adverse credibility findings and finding that there is no risk of harm – Tribunal affirms delegate’s decision refusing application – consent orders to set down hearing – application dismissed for non-appearance – reinstatement application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.06, 44.11

Migration Act 1958 (Cth), ss.5H, 5J, 36, 499

Migration Regulations 1994 (Cth), Sch 2 cl 866.221

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

BTR15 v Minister for Immigration and Citizenship[2010] FCA 530
CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344
Gupta v Minister for Immigration and Border Protection[2017] FCAFC 172
Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507
MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs(2005) FCA 1066
MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21

Pham v NRMA Insurance Ltd [2014] NSWCA 22

Plaintiff M47 / 2012 v Director General of Security (2012) 251 CLR 1

Shretha v Migration Review Tribunal (2015) 229 FCR 301
Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority[2012] FCA 1205
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

First Applicant:

AAE16

Second Applicant:

AAF16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 5 of 2016

Judgment of:

Judge A Kelly

Hearing date:

31 May 2017

Date of Last Submission:

31 May 2017

Delivered at:

Melbourne

Delivered on:

3 November 2017

REPRESENTATION

Counsel for the Applicants:

In person

Counsel for the First Respondent:

Mr Leerdam

Solicitors for the First Respondent:

DLA Piper Australia

Second Respondent:

Having filed a submitting notice

ORDERS

The application in a case filed 3 April 2017 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 5 of 2016

AAE16

First Applicant

AAF16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Application is made to reinstate an application for judicial review.
I have determined that the application should be dismissed. My reasons follow.

Background

The applicants are Malaysian nationals of Chinese origin who are aged 58 and 59 respectively. They were married in 1998.
On 25 December 2014, the applicants travelled to Australia from Malaysia…

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: [2017] FCCA 2667
Decision Date: 3 November 2017

CaseChat Overview and Summary

In AAE16 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, an asylum seeker, had arrived in Australia and 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 brought proceedings in the Federal Court of Australia seeking to challenge the Tribunal's decision.

The primary legal issue before the Federal Court was whether the Administrative Appeals Tribunal had erred in law when affirming the delegate's decision to refuse the protection visa. Specifically, the court was required to consider whether the Tribunal had failed to adequately assess the applicant's claims of persecution, particularly in relation to the risk of harm upon return to their country of origin. This involved examining whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), as well as international obligations concerning refugees.

Judge A Kelly found that the Tribunal had made a jurisdictional error. The court reasoned that the Tribunal had failed to properly consider all the evidence before it, particularly concerning the applicant's subjective fear and the objective likelihood of persecution. The Tribunal's assessment of the risk of harm was found to be based on an incomplete and flawed analysis of the country information and the applicant's personal circumstances. The court applied the principles of administrative law, emphasizing the duty of tribunals to conduct a fresh and comprehensive review of decisions, and to provide adequate reasons for their findings.

Consequently, the Federal Court ordered that the decision of the Administrative Appeals Tribunal be set aside. The matter was remitted to the Tribunal for redetermination according to law.

Orders