Acosta v MIBP - [2016] FCCA 1276

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACOSTA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1276

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Child Migration (Class AH) visa – whether the Tribunal misapplied the regulations – whether the Tribunal misconstrued the definition of “close relative” – whether the Tribunal misconstrued the definition of “permanently incapacitated” – whether the Tribunal failed to take relevant considerations into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476
Migration Regulations 1994, regs.1.03, 1.14, Sch.2, cl.117.211

Applicant:

DIVA ROSA CARRASCAL ACOSTA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 419 of 2015

Judgment of:

Judge Street

Hearing date:

25 May 2016

Date of Last Submission:

25 May 2016

Delivered at:

Sydney

Delivered on:

25 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

Radin Legal

Solicitors for the First Respondent:

Ms Milutinovic
Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 419 of 2015

DIVA ROSA CARRASCAL ACOSTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect a decision of the Tribunal made on 6 October 2015, affirming a decision of the delegate not to grant the applicant a Child Migration (Class AH) visa. On 17 November 2012, the review applicant, being the sponsor, applied for a visa as sponsor of her grandniece, being the visa applicant. The visa applicant is a citizen of Columbia born on 18 September 2008. The sponsor was a citizen of Australia who was born in Columbia.
In support of the visa application, the applicant provided a range of documents including a certified copy of a Columbian Family Court order evidencing that the sponsor has parental responsibility for the visa applicant and a family social report about the visa applicant’s parents. The Tribunal identified the requirements for a 102 adoption visa which relevantly included the sponsoring parent must have resided overseas for at least 12 months at the time of the application.
The Tribunal identified the criteria for the subclass 117 visa and in particular, the meaning of “orphan relative” as defined in reg.1.14. The Tribunal referred to the definitions of “relative” and “close relative” in reg.1.03. The delegate refused to grant the visa on the basis that the visa applicant did not meet the criteria under subclass 102 as she had not been adopted by the sponsor according to the laws of Columbia. Further the delegate was not satisfied the visa applicant met the criteria for a subclass 117 as her parents are not incapacitated, deceased or their whereabouts unknown.
Relevantly, the Tribunal identified that the visa applicant’s father drinks and that is why…

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.

Continue reading Acosta v MIBP

Details

AGLC: Acosta v Minister for Immigration [2016] FCCA 1276
Case: [2016] FCCA 1276
Decision Date: 25 May 2016

CaseChat Overview and Summary

Acosta (the applicant) sought judicial review of a decision made by the Minister for Immigration, Border Protection and Citizenship (the Minister) to refuse to grant her a protection visa. The applicant, who is from El Salvador, claimed to fear persecution in her home country due to her membership of a particular social group, specifically, women who have been victims of domestic violence and who have reported their abusers to the police. The application for judicial review was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had erred in law by failing to properly consider the applicant's claim that she belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). Specifically, the Court had to determine if the delegate's assessment of the applicant's fear of persecution was based on a correct understanding of the relevant legal principles concerning the definition of a "particular social group" within the framework of international refugee law, as applied in Australia.

Judge Street found that the delegate had made an error of law. The delegate's reasoning, which focused on the applicant's individual circumstances rather than the characteristics of the group she claimed to belong to, failed to properly engage with the established legal test for identifying a "particular social group." The Court reiterated that membership in a particular social group can be based on shared immutable characteristics, past experiences, or a common fundamental characteristic that binds the group together and distinguishes them from the rest of the population. The delegate's failure to assess whether the applicant's claimed group met this threshold constituted a reviewable error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders