AMO18 v Minister for Home Affairs - [2018] FCCA 3379

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMO18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3379

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Tribunal considered all claims by applicant.

Legislation:

Migration Act 1958 (Cth), ss.5J(2), 5LA, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2B), 36(2B)(b)

Cases cited:

A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545
ABAR15 v Minister for Border Protection (No.2) (2016) 242 FCR 11
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

First Applicant:

AMO18

Second Applicant

AMR18

Third Applicant

AMS18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINSITRATIVE APPEALS TRIBUNAL

File Number:

BRG 100 of 2018

Judgment of:

Judge Jarrett

Hearing date:

21 September 2018

Date of Last Submission:

21 September 2018

Delivered at:

Brisbane

Delivered on:

21 November 2018

REPRESENTATION

Counsel for the Applicants:

Mr Young

Solicitors for the Applicants:

Stolar Law Pty Ltd

Counsel for the First Respondent:

Mr Byrnes

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The amended application for review filed on 27 September, 2018 be dismissed.
The applicants pay the first respondents costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 100 of 2018

AMO18

First Applicant

AMR18

Second Respondent

AMS18

Third respondent

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

On 21 September, 2018 I granted the applicants an extension of time within which to commence an application for review of a decision of the second respondent which affirmed a decision of a delegate of the first respondent to refuse to grant them Protection (class XA) visas. I also made directions for the filing and service of further material consequent upon what emerged during the hearing before me as a new ground of review that the applicants wished to agitate.
The parties have now filed and served the material the subject of my directions made on 21 September, 2018. These reasons relate to the disposition of the applicants’ amended application for review filed on 27 September, 2018.

Background

Counsel for the first respondent has set out a comprehensive background to this application in his written submissions filed on 11 September, 2018. It was not suggested by counsel for the applicants that what was set out in those written submissions was inaccurate or incomplete. I have drawn upon that background and supplemented where necessary in what follows.
The applicants are citizens of the Philippines. The first applicant is the mother of the second and third applicants. They arrived in Australia on 8 September, 2006 on subclass 457 (Business) visas, as dependants to the first applicant’s husband, who is also the second and third applicants’ father. The first applicant also has another daughter who is older than the second and third applicants.…

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 AMO18 v Minister for Home Affairs

Details

AGLC: Amo18 v Minister for Home Affairs [2018] FCCA 3379
Case: [2018] FCCA 3379
Decision Date: 21 November 2018

CaseChat Overview and Summary

AMO18 (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The applicant had applied for a protection visa, which was refused by the primary decision-maker. The applicant then sought review of this decision by the Tribunal. The applicant's case before the Tribunal involved multiple claims for protection, including claims based on past persecution and claims based on a fear of future persecution. The Tribunal affirmed the refusal of the protection visa. The applicant then brought proceedings in the Federal Court of Australia seeking to set aside the Tribunal's decision.

The central legal issue before the Court was whether the Tribunal had adequately considered all of the claims made by the applicant in its decision-making process. Specifically, the applicant contended that the Tribunal had failed to give proper consideration to certain aspects of their claims, thereby breaching the requirements of procedural fairness. The applicant argued that the Tribunal's reasons did not demonstrate that it had engaged with the entirety of the evidence and submissions presented, particularly concerning the risk of future persecution.

Justice Jarrett found that the Tribunal had failed to adequately consider all of the applicant's claims. The Court held that the Tribunal's reasons for decision did not demonstrate a proper engagement with the applicant's submissions regarding the risk of future persecution. The Tribunal's approach was found to be deficient in that it did not sufficiently explain why it rejected certain aspects of the applicant's case, particularly in light of the evidence presented. The legal principle applied was that a decision-maker must not only consider all claims but must also provide reasons that demonstrate this consideration, especially where those claims are central to the applicant's case.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside. The matter was remitted to the Tribunal to be heard and determined according to law.

Orders