Apo18 v Minister for Home Affairs - [2019] FCCA 3156

FEDERAL CIRCUIT COURT OF AUSTRALIA

APO18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3156

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Home Affairs not to grant a Protection visa to the applicant – asserted grounds for finding jurisdictional error factually erroneous – none of the grounds asserted by the applicant establish jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.430

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v Commonwealth (1999) 197 CLR 510

AWA15 v Minister for Immigration [2018] FCA 604

CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627
SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499

Applicant:

APO18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 337 of 2018

Judgment of:

Judge Dowdy

Hearing date:

15 October 2019

Delivered at:

Sydney

Delivered on:

15 October 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms P. Durham

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 9 February 2018 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 2 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 337 of 2018

APO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction and Background

The Applicant is a female citizen of China aged 51 years, having been born on 20 January 1968.
By Application filed in this Court on 9 February 2018 she seeks to quash and have re-determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 18 January 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 10 September 2015 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia on 1 August 2014, holding a Visitor (Subclass 600) visa (Visitor visa) and she lodged her Protection visa application on 23 October 2014.

Claims to Protection

The Applicant’s claims to protection were set out in a written statement dated 20 October 2014 (Statement) which formed part of her Protection visa application, and may be summarised in short…

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 3156
Decision Date: 15 October 2019

CaseChat Overview and Summary

The applicant, Apo18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Home Affairs' refusal to grant a protection visa. The application was heard by Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the AAT's decision involved jurisdictional error. The applicant asserted several grounds for finding such error, primarily related to factual inaccuracies in the AAT's assessment.

Dowdy J considered each of the applicant's asserted grounds for jurisdictional error. The Court found that none of the grounds advanced by the applicant established that the AAT had made a jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders