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AJB18 v Minister for Home Affairs

AJB18 v Minister for Home Affairs

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Case Copied 13 March 2019 72 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AJB18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 607

Catchwords:
MIGRATION – Protection visa – family unit – child born in Australia of Nepalese parents – mother’s previous refugee claims rejected – effect of s.48A of the Migration Act 1958 (Cth) – whether mother entitled to complimentary protections – whether child at risk of harm because of mother’s previous political activity and parents’ marital status – whether Tribunal’s decision unreasonable, illogical or irrational – whether claims and evidence overlooked – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 48A, 65, 91R, 91S, 416, 417, 476, 499

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth), sch.5, Pts.2 and 4, its.7 and 28
Migration Regulations1994 (Cth), reg.1.12, sch.2

Cases cited:

First Applicant:

AJB18

Second Applicant:

AJC18

Third Applicant:

AJD18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 49 of 2018

Judgment of:

Judge Christopher Kendall

Hearing date:

10 September 2018

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: [2019] FCCA 607
Decision Date: 13 March 2019

CaseChat Overview and Summary

The applicant, AJB18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning a protection visa application. The applicant was a child born in Australia to Nepalese parents. The mother had previously made refugee claims which had been rejected. The dispute centred on whether the applicant child was entitled to protection, and whether the mother was entitled to complimentary protections, in light of her prior rejected claims and the child's circumstances. The matter came before Judge Christopher Kendall of the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included the effect of section 48A of the *Migration Act 1958* (Cth) on the applicant's claim, given the mother's previous unsuccessful refugee claims. The court also had to consider whether the applicant child was at risk of harm due to the mother's past political activities and the parents' marital status. Furthermore, the court was asked to assess whether the AAT's decision was unreasonable, illogical, or irrational, and whether the Tribunal had overlooked relevant claims and evidence.

In his reasoning, Judge Kendall found that there was no jurisdictional error on the part of the AAT. The Tribunal had properly considered the relevant provisions of the *Migration Act*, including section 48A, and had not overlooked material evidence or claims. The court determined that the AAT's assessment of the risk of harm to the child, in the context of the mother's prior claims and the family's circumstances, was open to it and was not illogical or irrational. The principles applied related to the standard of review for AAT decisions, the interpretation of migration legislation, and the assessment of risk in protection visa claims.

The application was dismissed.

Orders