APN18 v Minister for Home Affairs - [2019] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

APN18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1351

Catchwords:
MIGRATION – Protection visa – claim to having suffered domestic violence from spouse in Malaysia – claims rejected as vague and lacking in detail – criteria for grant of visa not satisfied – no jurisdictional error shown – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr 44.12, 44.13

Migration Act 1958 (Cth), ss 5J, 36, 65, 474, 476

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] 252 FCR

352

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Morad v El-Ashey [2017] FCA 1136

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZAJQ v Minister for Immigration [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Siddique v Minister for Immigration and Border Protection [2014]

FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118

SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018]

FCA 2051

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant:

APN18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 324 of 2018

Judgment of:

Judge A Kelly

Hearing date:

15 May 2019

Date of Last Submission:

15 May 2019

Delivered at:

Melbourne

Delivered on:

23 May 2019

REPRESENTATION

The Applicant:

In Person

Solicitor Advocate for the Respondents:

Mr C. van der Westhuizen

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application filed on 9 February 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 324 of 2018

APN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 9 February 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 January 2018 affirming a decision of a delegate of the first respondent (Minister) not to grant her a Protection visa (visa) pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
The applicant, a female Malaysian national aged 52 years, first arrived in Australia on 5 March 2012 as the holder of a visitor visa. Thereafter, the applicant remained in Australia unlawfully until she lodged her application for the visa on 21 September 2015.
In her visa application, the applicant claimed to suffer from a disability which appeared to refer to alleged injuries to her face and finger that she claimed to have suffered as a result of her husband’s domestic violence. The applicant claimed that since suffering her disability,…

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 1351
Decision Date: 23 May 2019

CaseChat Overview and Summary

The applicant, APN18, sought judicial review of a decision by the Minister for Home Affairs to refuse their application for a protection visa. The applicant's claim for protection was based on allegations of domestic violence suffered from their spouse in Malaysia. The primary judge dismissed the application, finding that the criteria for the grant of a protection visa were not satisfied and that no jurisdictional error had been demonstrated.

The central legal issue before the court was whether the primary judge erred in finding that the applicant's claims of domestic violence lacked the necessary specificity and detail to satisfy the criteria for a protection visa. This involved an assessment of whether the applicant had provided sufficient information to establish a well-founded fear of persecution for a Convention reason, as required for a protection visa.

The court affirmed the primary judge's reasoning, concluding that the applicant's claims were indeed vague and lacked the requisite detail to establish a well-founded fear of persecution. The court applied the principles governing the assessment of protection visa claims, which require applicants to provide specific and credible information about their experiences and fears. Without such detail, the applicant could not demonstrate that they met the criteria for the grant of a protection visa, and therefore, no jurisdictional error was found.

Orders