FEDERAL COURT OF AUSTRALIA
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
Citation: AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 Appeal from: AMA15 v Minister for Immigration & Anor [2015] FCCA 1954 Parties: AMA15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 912 of 2015 Judge: MARKOVIC J Date of judgment: 15 December 2015 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – whether Tribunal fell into jurisdictional error in not considering applicant’s application under s 36(2)(a) where the application was limited to the complementary protection criterion in circumstances where the delegate had considered the application under both criteria – no jurisdictional error – Tribunal correctly confined the exercise of its powers and discretions under the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: Minister for Immigration v Li (2013) 249 CLR 332
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZVCH v Minster for Immigration and Border Protection [2015] FCCA 2950
SZVGG v Minister for Immigration and Border Protection [2015] FCCA 405
SZVGG v Minster for Immigration and Border Protection [2015] FCA 859
VAAC vMinister for Immigration and Multicultural andIndigenous Affairs (2003) 129 FCR 168
VUAX v Minister for Immigration and Multicultural andIndigenous Affairs [2004] FCAFC 158
WZAVA v Minster for Immigration and Border Protection [2015] FCCA 1454Date of hearing: 24 November 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms N Maddocks of DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 912 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: AMA15
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
15 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed
2.The Appellant to pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 912 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: AMA15
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE:
15 DECEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 17 July 2015 dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (at the time the Refugee Review Tribunal) (the Tribunal): see AMA15 v Minister for Immigration & Anor [2015] FCCA…
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Details
- AGLC
- AMA15 v MIBP [2015] FCA 1424
- Case
- [2015] FCA 1424
- Decision Date
CaseChat Overview and Summary
The case of AMA15 v MIBP involved an appeal by the appellant, AMA15, against a decision made by the Tribunal, affirming the decision of the Minister’s delegate. The appellant sought review of the delegate’s decision that his application for a protection visa under the Migration Act 1958 (Cth) be refused. The Tribunal's decision was confined to considering the appellant’s claims under the complementary protection criteria in s 36(2)(aa) of the Act, and it found that the appellant had not established that he met the criteria.
The central legal issue was whether the Tribunal erred in not considering the appellant’s application under s 36(2)(a) of the Act, the Refugee Convention criterion, when the application was limited to the complementary protection criterion in circumstances where the delegate had considered the application under both criteria. The appellant argued that the Tribunal should have examined his claims under both criteria, but the Tribunal maintained its position that it was bound by the Full Federal Court's decision in SZGJZ v MIAC, which held that the Tribunal’s power was confined to the complementary protection provisions in s 36(2)(aa).
The court found that the Tribunal did not fall into jurisdictional error. It correctly confined the exercise of its powers and discretions under the Migration Act 1958 (Cth) to the complementary protection criterion as required by SZGJZ v MIAC. The court held that the Tribunal's approach was consistent with the law and there was no error in the Tribunal's reasoning or decision-making process.
The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs. The court's decision underscored the importance of the Tribunal adhering to its jurisdictional limits as defined by higher courts, ensuring that its review powers are exercised within the legal framework established by relevant case law.
The central legal issue was whether the Tribunal erred in not considering the appellant’s application under s 36(2)(a) of the Act, the Refugee Convention criterion, when the application was limited to the complementary protection criterion in circumstances where the delegate had considered the application under both criteria. The appellant argued that the Tribunal should have examined his claims under both criteria, but the Tribunal maintained its position that it was bound by the Full Federal Court's decision in SZGJZ v MIAC, which held that the Tribunal’s power was confined to the complementary protection provisions in s 36(2)(aa).
The court found that the Tribunal did not fall into jurisdictional error. It correctly confined the exercise of its powers and discretions under the Migration Act 1958 (Cth) to the complementary protection criterion as required by SZGJZ v MIAC. The court held that the Tribunal's approach was consistent with the law and there was no error in the Tribunal's reasoning or decision-making process.
The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs. The court's decision underscored the importance of the Tribunal adhering to its jurisdictional limits as defined by higher courts, ensuring that its review powers are exercised within the legal framework established by relevant case law.
Orders
Orders of the court
1. The appeal be dismissed
2. The Appellant to pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 19 June 2014, the appellant applied to the Tribunal for review of the delegate’s decision. By letter dated 11 February 2015, the Tribunal invited the appellant to attend a hearing to give evidence and to present arguments relating to the issues arising in the appellant’s case. On 19 March 2015, the appellant appeared before the Tribunal with the assistance of an interpreter. The Tribunal affirmed the decision of the Minister’s delegate on 24 March 2015.THE TRIBUNAL DECISION The Tribunal noted that its role was to consider the appellant’s claims under the complementary protection criteria in s 36(2)(aa) of the Act. At [8] and [9] of its decision it observed:8.The primary decision record (a copy of which the applicant provided to the Tribunal) indicates that that applicant was previously refused a protection visa in Australia. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Applying the reasoning in SZGJZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. 9.The Tribunal has proceeded (as indicated at the hearing) to consider the applicant’s claims in relation to the complementary protection requirements of s. 36(2)(aa). At the hearing the appellant only pursued his claims in relation to the debts he said he owed in China. The Tribunal discussed with the appellant the significant concerns it had in relation to the alleged debts and events in China. The Tribunal set out a number of matters arising from the appellant’s evidence based on which the Tribunal was not satisfied that the appellant had been truthful in his evidence or claims. The Tribunal was not satisfied that the appellant owned a shoe business in China in relation to which he incurred substantial debts from a failed commercial transaction or that the appellant is being sought by factory owners or loan sharks because of any debt he owes them. The Tribunal was also not satisfied that the appellant was accused of being a Falun Gong practitioner because of the debts, that he was detained in China because of the debts, that his business was forced to close or that his friend was detained after the appellant departed China. As a result, the Tribunal was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there is a real risk that he will suffer harm because of any debts incurred in China.
Ratio Decidendi
Legal Principle Established
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