AEE19 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 137

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AEE19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 137

File number(s): SYG 84 of 2019
Judgment of: JUDGE SKAROS
Date of judgment: 7 February 2025
Catchwords: MIGRATION – Judicial Review – Where applicant was granted a refugee permit and permanent residence in third country prior to seeking protection in Australia – Where Administrative Appeals Tribunal (Tribunal) found that Australia did not have protection obligations by operation of s 36(3) – Where Tribunal considered incorrect test as to the meaning of s 36(3) – Error but not materiality conceded by Minister - Where possible that had Tribunal engaged with correct test outcome could have been different – Materiality established – writs issued
Legislation: Migration Act 1958 ss 36, 438, 499
Cases cited:

ABB19v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715

AJN23 v Minister for Immigration [2024] FCAFC 103

DED16 v Minister for Home Affairs [2019] FCAFC 18

LPDT v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91

SZMWQ v Minister for Immigration and Citizenship (2010) [2010] FCAFC 97

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018
Division: Division 2 General Federal Law
Number of paragraphs: 85
Date of hearing: 5 December 2025
Place: Parramatta
Counsel for the Applicant: Mr Jones
Solicitor for the Applicant: Alkafaji Lawyers
Counsel for the First Respondent: Ms Maddocks
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: Submitting appearance, save as to costs.

ORDERS

SYG 84 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AEE19

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.

2.A writ of certiorari issue quashing the decision of the Second Respondent made on 20 December 2018.

3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE SKAROS:

  1. By application filed on 15 January 2019 and amended on 31 October 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 20 December 2018. The Tribunal affirmed a decision of…

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AEE19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 137
Case
[2025] FedCFamC2G 137
Decision Date

CaseChat Overview and Summary

The applicant, a male citizen of Iraq, sought judicial review of a decision by the Administrative Review Tribunal (successor to the Administrative Appeals Tribunal) affirming a decision of the Minister for Immigration and Multicultural Affairs to refuse his application for a Protection (Class XA) (Subclass 866) visa. The applicant had been granted a refugee resident visa in France and argued he could not return there due to discrimination and harassment he faced. The Tribunal affirmed the delegate's decision on the basis that the applicant had a right to enter and reside in France, such that Australia did not have protection obligations for him under s 36(3) of the Migration Act 1958. The applicant contended the Tribunal misstated the correct statutory test in respect of s 36(3) and, in misdirecting itself as to the correct test, it acted unreasonably and/or failed to properly consider the evidence. The Minister conceded the Tribunal applied the wrong test but argued the error was not material. The Court found the Tribunal did not assess whether the applicant was a person in respect of whom Australia has protection obligations under s 36(2). Instead, it relied on the qualification in s 36(3) to exclude the applicant from being owed protection by Australia in circumstances where they have the right to enter and reside in any other country. The Court held the Tribunal's error was material because, had it engaged with the correct test, the outcome could have been different.

The Court found the Tribunal's error in applying the wrong test under s 36(3) of the Migration Act 1958 was material. The proper test requires determining whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2). If so, s 36(3) is inapplicable. The Tribunal's reliance on s 36(3) when it should have assessed s 36(2) was an error of law. The Court held this error was material because, had the Tribunal engaged with the correct test, the outcome could have been different. The Minister conceded the error was material, and the Court found the applicant's claims for protection credible. Therefore, the Tribunal's affirmance of the delegate's decision was quashed and the matter was remitted to the Tribunal for reconsideration in light of the Court's reasons.

Orders

Orders of the court

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Background

Background to the litigation

By application filed on 15 January 2019 and amended on 31 October 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 20 December 2018. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minster) in refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the visa).[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.BACKGROUND The applicant is a male citizen of Iraq. He first arrived in Australia on 21 January 2016 as the holder of a visitor visa. On 25 February 2016 the applicant applied for the visa. In that application form, the applicant stated that he had been granted a refugee resident visa in France and that he had the right to enter or reside in France. The applicant stated that he was seeking protection in Australia so that he did not have to return to Iraq. The applicant also set out his claim for protection in the application form. On 1 July 2016 the applicant attended an interview with a delegate of the Minister at which he made additional claims. On 21 July 2016 a delegate of the Minister refused to grant the applicant the visa. On 9 August 2016 the applicant applied to the Tribunal for review of the delegate’s decision. On 16 August 2016, a delegate of the Minister, pursuant to s 438(1)(a) of the Migration Act 1958 (the Act), issued two certificates and notifications regarding the non-disclosure of certain information. On 25 September 2018, the Tribunal requested from the applicant all formal and informal correspondence relating to his application for French citizenship, including the correspondence from the French government refusing his citizenship application. On 9 October 2018 the applicant responded to this request for information. On 21 November 2018 the applicant’s representative provided to the Tribunal submissions and a statutory declaration in which the applicant made claims as to why he did not/could not return to France. The applicant was invited to and attended a hearing before the Tribunal on 28 November 2018. On 20 December 2018 the Tribunal affirmed the decision under review. As will be seen, the Tribunal was satisfied that s 36(3) of the Act was engaged, as it found the applicant had a right to enter and reside in France, such that Australia did not have protection obligations for him.THE TRIBUNAL’S DECISION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 20 December 2018 the Tribunal affirmed the decision under review. As will be seen, the Tribunal was satisfied that s 36(3) of the Act was engaged, as it found the applicant had a right to enter and reside in France, such that Australia did not have protection obligations for him.THE TRIBUNAL’S DECISION The Tribunal first outlined the criteria for the visa in s 36 of the Act, setting out the refugee criterion and the complementary protection criterion. The Tribunal identified that it had regard to Ministerial Direction No. 56 made under s 499 of the Act and policy guidelines prepared by the Department of Immigration, ‘PAM3 Refugee and humanitarian – Complementary Protection Guidelines’, ‘PAM3 Refugee and humanitarian – Refugee Law Guidelines’ and other relevant country information The Tribunal summarised the applicant’s claims for protection. The applicant feared returning to Iraq because he had been subject to persecution as a result of his religion (Sunni Islam), political opinion and membership of a particular social group. The applicant’s father and brother had been officers in Sadam Hussein’s army and were targeted by Shi’a militias, including being placed on their ‘assassination list’. The military raided his family’s home looking for his father and brother and threatened to harm the family unless they ‘got’ his father and brother. The applicant’s father was detained in Baghdad and tortured but was able to convince the torturers he didn’t participate in the Iran-Iraq war and returned prior to the uprising. The applicant’s father was released and died in 2005. The applicant’s brother is a refugee in Australia and his other brother escaped after he was threatened. As to the harm the applicant directly experienced, the Tribunal summarised that he was shot at, on the following day ‘they’ came looking for him at work and when they didn’t find him, they killed his boss, kidnapped all the Sunnis and killed them. He was issued a fake police warrant, received a threatening letter with a bullet, was at a mosque when it was bombed (he was wounded and psychologically affected) and he was harassed daily. When the applicant lived in France, it was under terrorist attack and because of a change in attitude towards immigrants, he was subject to serious discrimination and harassment which ultimately led to the refusal of his citizenship. As to the applicant’s travel and family history, the Tribunal noted that the applicant had been granted a protection visa in France in 2009 and had lived there until coming to Australia in January 2016. The applicant’s family had been granted refugee status and moved to Australia. In France the applicant was isolated from his family. The applicant arrived in Australia in January 2016 on a visitor visa and lodged a protection visa the next month. The applicant stated he was unwilling to return to France due to the discrimination he faced there. The Tribunal considered that the dispositive issue on review was whether the applicant had ‘taken all possible steps to exercise a legally enforceable right to enter and reside in a safe third country other than Australia’. In this case the safe third country was France. Pursuant to s 36(3) of the Act, the Tribunal stated ‘Australia is taken not to owe protection obligations to a person who has not taken all possible steps to exercise a legally enforceable right to enter and reside in a safe third country.’

Ratio Decidendi

Legal Principle Established

The applicant submitted that the country information that answered the question of whether travel documents could be renewed was ‘yes, although they should normally apply for a transfer of responsibility for protection to the state of their current residence’; and that this means that there could not be renewal where the overseas location could assume responsibility for protection, which described Australia. Therefore, renewal so as to satisfy s 36(3) seems practically unlikely.CONSIDERATION Whilst the amended application contains one ground of review, there are, two interrelated arguments falling under that ground; that the Tribunal had misstated the correct statutory test in respect of s 36(3) of the Act and, in misdirecting itself as to the correct test to be applied under s 36(3), it acted unreasonably and/or failed to properly consider the evidence before it when concluding that the applicant could renew his French travel document. The Minister conceded that the Tribunal had applied the wrong test with respect to the proper construction of s 36(3) but argued that the error was not material. In oral submissions, counsel for the applicant clarified that, notwithstanding that the issue before the Court was whether the misconstruction of s 36(3) by the Tribunal was material to the outcome of the review, the applicant did not abandon the additional grounds of legal unreasonableness and/or want of proper consideration. Counsel nevertheless acknowledged that if the Court found against the applicant on the issue of materiality, then the additional grounds, which were based on the same underlying evidence, would also fall with that finding. Before turning to the issue of materiality, it is convenient to briefly say something about the approach taken by the Tribunal, some relevant facts and the proper construction of s 36(3) as set out in the relevant authorities. In the present case, the Tribunal did not assess whether the applicant, who is a citizen of Iraq, was a person in respect of whom Australia has protection obligations either because he was a refugee, as provided for in s 36(2)(a), or because he satisfied the complementary protection criterion in s 36(2)(aa). It relied on the qualification in s 36(3) which, subject to exceptions in s 36(4) – (5A), operates to exclude a person from being owed protection by Australia in circumstances where they have the right to enter and reside in any other country. Relevantly, s 36(3) of the Act provides that:Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. As noted by the Minister in oral submissions, this provision was introduced as part of amendments to the Act in 1999 for the purposes of preventing asylum seekers from ‘forum shopping’: SZRHU, per Flick J at [92].