FEDERAL COURT OF AUSTRALIA
ABT16 v Minister for Home Affairs [2019] FCA 836
Appeal from: ABT16 & Anor v Minister for Immigration & Anor [2018] FCCA 1084 File number: NSD 932 of 2018 Judge: PERRY J Date of judgment: 5 June 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) – where AAT affirmed delegate’s decision refusing to grant the appellants a protection visa – whether AAT failed to consider an essential component of the claims to fear harm, being the accrual of interest on unpaid debts and/or significant delay in repayment – where appellants did not claim that these aspects of the claims bore upon the risk of harm or led evidence to that effect – where s 5AAA, Migration Act 1958 (Cth), imposes responsibility on visa applicants to specify claims and lead evidence – whether AAT’s reasoning was legally unreasonable – where an aspect of the AAT’s reasoning was illogical and irrational but the error was not material – appeal dismissed Legislation: Migration Act 1958 (Cth) s 5AAA
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Date of hearing: 21-22 November 2018, 7 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 38 Counsel for the Appellants: Mr J F Gormly Solicitor for the Appellants: Labour Pains Legal Counsel for the First Respondent: Mr P M Knowles Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 932 of 2018 BETWEEN: ABT16
First Appellant
ABU16
Second Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
5 JUNE 2019
THE COURT ORDERS THAT:
1.The…
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- Case
- [2019] FCA 836
- Decision Date
CaseChat Overview and Summary
The court noted that it is well established that a failure to consider an essential component of an applicant’s claims to fear harm may result in jurisdictional error. However, the court found that the applicants did not claim that the accrual of interest on unpaid debts or significant delays in repayment bore upon the risk of harm or lead evidence to that effect. The court also highlighted that section 5AAA of the Migration Act imposes a responsibility on visa applicants to specify their claims and lead evidence. The court concluded that the AAT’s reasoning, while containing an illogical and irrational aspect, did not result in a material error as the applicants could not establish that the AAT’s failure to consider the accrual of interest and delays in repayment could have led to a different decision.
The appeal was dismissed with costs. The court granted leave to amend the notice of appeal and raise new grounds, but ultimately found the appeal to be without merit. The serious consequences of an unsuccessful appeal were considered in granting leave, but the court held that the applicants could not demonstrate that the AAT’s failure to address the accrual of interest and delays in repayment was material to the decision.
Orders
Orders of the court
1. The application for an extension of time within which to appeal is treated as an appeal.
2. Leave is granted to file the amended notice of appeal and to raise the new issues.
3. The appeal is dismissed.
4. The appellants are to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I indicated at the hearing on 7 May 2019 that I would grant leave to amend the notice of appeal and to raise the new grounds for the reasons that the Minister could not point to any prejudice which could not be addressed by an order for costs (cf Minister’s supplementary submissions at [6]) and that, viewed from a reasonably impressionistic level, the proposed grounds of appeal were not without merit. As to the latter, first, the loans in question had been outstanding for a very substantial period of time. Yet this aspect of the mother’s claims was not, at least expressly, considered by the Tribunal. Furthermore the fact that the mother’s sister and friend had not sought to enforce the first set of loans for the mother’s business otherwise than by repeated requests for repayment logically says nothing about how different people who lent the mother money at a high interest rate for an investment in a failed or non-existent real property project would respond to the mother’s failure to repay that loan. In deciding that it was appropriate to grant leave to amend to raise the new grounds, I also took into account the seriousness of the likely consequences to the appellants in the event that they are unsuccessful on the appeal. 4. CONSIDERATION4.1 Did the Tribunal fail to consider an essential component of the mother’s claims to fear harm (ground 1)?4.1.1Relevant principles First, it is well established that if the Tribunal fails to consider an essential component of an applicant’s claims to fear harm, it may fall into jurisdictional error because it will have failed to undertake a review as required by s 414(1) of the Act. As the Full Court recently held in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214:36. Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. Secondly, any such failure must be “material” in the sense that “compliance with the condition could have resulted in the making of a different decision”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [31] (Kiefel CJ, Gageler and Keane JJ); see also at [41] (Nettle J) and [66]‑[72] (Edelman J). In the present context, the requirement that the failure to address a contention is “material” means that the contention must be one which if accepted, might have established that the applicant had a well-founded fear of significant harm for the purposes of s 36(2)(aa): see by analogy WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [46] (the Court).