Abt16 v Minister for Immigration - [2018] FCCA 1084

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABT16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1084

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to amend application for judicial review to include a ground not raised until hearing of application for judicial review – whether adequate explanation given for not including ground in the application before the hearing of the application for judicial review – whether there is sufficient merit in proposed ground – application for leave to amend application refused.

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered applicants’ claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(a)

Cases cited:

Minister for Immigration Citizenship v SZIAI [2009] HCA 39

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212

First Applicant:

ABT16

Second Applicant:

ABU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 41 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

7 April 2017

Date of Last Submission:

7 April 2017

Delivered at:

Sydney

Delivered on:

11 May 2018

REPRESENTATION

Applicants in person assisted by an interpreter

Solicitors for the First Respondent:

Ms L Buchanan of Australian Government Solicitor

ORDERS

The application for leave to amend the application to include as a ground that the second respondent made a jurisdictional error by providing an interpreter in the Mandarin language rather than in the Fuqing language is dismissed.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 41 of 2016

ABT16

First Applicant

ABU16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first and second applicants are mother and son respectively, and citizens of the People’s Republic of China. They seek judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (protection visa).

Migration History

The applicants arrived in Australia on 17 December 2007 on Student visas. The first applicant (applicant) lodged a protection visa application on 8 August 2008. A delegate of the Minister refused that protection visa application and, on 28 February 2009, the Refugee Review Tribunal affirmed the delegate’s decision.
On 19 March 2014 the applicant lodged a second protection visa application, in which the second applicant was included as a member of the applicant’s family unit. That application was accepted as valid because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[1] A delegate of the Minister refused to grant the visa on 17 July 2014, and the Tribunal affirmed the delegate’s decision on 18 December 2015.
[1] [2013] FCAFC 71

Claims for Protection

In her application for…

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 1084
Decision Date: 11 May 2018

CaseChat Overview and Summary

The applicants, identified as Abt16 and others, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed a decision not to grant them protection visas. The matter came before Judge Manousaridis in the Federal Court of Australia.

The primary legal issues before the Court were whether the Tribunal had considered the applicants' claims, thereby avoiding jurisdictional error, and whether the applicants should be granted leave to amend their application for judicial review to include a new ground that had not been raised until the hearing.

His Honour determined that the Tribunal had indeed considered the applicants' claims, finding no jurisdictional error in its decision. Regarding the application to amend, the Court refused leave because the applicants had not provided an adequate explanation for failing to include the proposed new ground in their initial application for judicial review, nor was there sufficient merit demonstrated in the proposed ground itself.

Orders