FEDERAL COURT OF AUSTRALIA
AMO18 v Minister for Home Affairs [2020] FCA 1403
Appeal from: AMO18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 3379 File number(s): QUD 911 of 2018 Judgment of: GREENWOOD J Date of judgment: 29 September 2020 Catchwords: MIGRATION – consideration of an appeal on the footing that the primary judge is said to have fallen into error in failing to find that the Administrative Appeals Tribunal fell into jurisdictional error in relation to its assessment of a claim under the Complementary Protection Regime of the Migration Act 1958 (Cth) concerning a fear of a real risk of significant harm on the footing that the appellants would be regarded, respectively, as a divorcee and family members of a divorcee, should the appellants return to the Philippines Legislation: Migration Act 1958 (Cth), ss 5J(2), 5LA, 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(b) Cases cited: CR1026 v Republic of Nauru (2018) 92 ALJR 529
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 74 Date of hearing: 17 May 2019 Counsel for the Appellants: J R Young Solicitor for the Appellants: Stolar Law Counsel for the Respondents: J Byrnes Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 911 of 2018 BETWEEN: AMO18
First Appellant
AMR18
Second Appellant
AMS18
Third Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
29 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The appeal is upheld.
2.The orders of the Federal Circuit Court of Australia made on 21 November 2018 are set aside and in their place orders are made:
(a)for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 15 November 2017 to the extent that the Tribunal affirmed the decision of the first respondent’s delegate not to grant the appellants a protection visa on the basis of a claim made under the Complementary Protection Regime of the Migration Act 1958 (Cth) on the footing that the appellants as, respectively, a divorcee and the family members of a divorcee, would suffer a real risk of significant harm should they return to the receiving country of the Philippines, and remitting that matter to the Tribunal to be determined according to law; and
(b)that the first respondent pay the costs of the appellants of and incidental to the application to the Federal Circuit Court of Australia.
3.The first respondent pay the costs of the appellants of and incidental to the appeal to this Court.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in…
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- AGLC
- AMO18 v Minister for Home Affairs [2020] FCA 1403
- Case
- [2020] FCA 1403
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the correct interpretation and application of the Complementary Protection Regime of the Migration Act 1958 (Cth), specifically the requirement to demonstrate a real risk of significant harm upon return to the country of origin. The appellants contended that the primary judge had erred by not finding that the AAT had erred in its assessment of their claim.
The court found that the primary judge had indeed failed to properly consider the evidence and submissions presented by the appellants. The court concluded that the AAT had not appropriately assessed the appellants' fear of significant harm based on their status as a divorcee and family members of a divorcee. The court held that the AAT's decision was flawed and remitted the matter back to the AAT for reconsideration in light of the court's findings.
The appeal was allowed, the orders of the Federal Circuit Court of Australia were set aside, and the matter was remitted to the AAT for reconsideration. The first respondent was also ordered to pay the costs of the appellants for both the application to the Federal Circuit Court and the appeal to the Federal Court of Australia.
Orders
Orders of the court
1. The appeal is upheld.
2. The orders of the Federal Circuit Court of Australia made on 21 November 2018 are set aside and in their place orders are made:
(a) for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 15 November 2017 to the extent that the Tribunal affirmed the decision of the first respondent’s delegate not to grant the appellants a protection visa on the basis of a claim made under the Complementary Protection Regime of the Migration Act 1958 (Cth) on the footing that the appellants as, respectively, a divorcee and the family members of a divorcee, would suffer a real risk of significant harm should they return to the receiving country of the Philippines, and remitting that matter to the Tribunal to be determined according to law; and
(b) that the first respondent pay the costs of the appellants of and incidental to the application to the Federal Circuit Court of Australia.
3. The first respondent pay the costs of the appellants of and incidental to the appeal to this Court.
4. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
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
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Ratio Decidendi
Legal Principle Established
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