ARN16 v Minister for Immigration - [2018] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1035

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – first applicant arrives in Australia on visitor visa – overstays visa – protection visa application lodged some years later – grounds of application wholly generalised – Tribunal identified and considered each claim as articulated – no jurisdictional error – application dismissed.

MIGRATION – Children – first applicant becomes pregnant and delivers child following lodgement of protection visa application – child added to application as member of same family unit – child required to satisfy criteria at time of decision – consideration of child’s interests – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 65, 424A, 425, 476, 501
Migration Regulations 1994 (Cth) rr.1.05A, 1.12, 2.08, 866, 866.21, 866.22

Ministerial Direction No 65 Visa refusal and cancellation under s 501

First Applicant:

ARN16

Second Applicant:

ARO16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 631 of 2016

Judgment of:

Judge A Kelly

Hearing date:

29 May 2017

Date of Last Submission:

29 May 2017

Delivered at:

Melbourne

Delivered on:

30 April 2018

REPRESENTATION

The Applicants:

In person

Counsel for the Respondents:

Ms Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The Applicants pay the First Respondent’s costs fixed at $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 631 of 2016

ARN16

First Applicant

ARO16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first named applicant, a Cambodian national aged 38 years, is the litigation guardian of her infant child, who is the second applicant.[1]
[1]The infant child is in fact the second child born to the first applicant but is for convenience referred to as ‘the child’ in these reasons for judgment.
By an application filed on 29 March 2016 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal

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: [2018] FCCA 1035
Decision Date: 30 April 2018

CaseChat Overview and Summary

The applicants sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning a protection visa application. The first applicant arrived in Australia on a visitor visa and subsequently overstayed. Years later, a protection visa application was lodged, which the applicants contended were wholly generalised. The Tribunal considered each claim as articulated by the applicants.

The primary legal issues before the court were whether the Tribunal had committed any jurisdictional error in its assessment of the protection visa application, and in particular, whether it had adequately considered the interests of the child who was added to the application as a member of the same family unit after the first applicant became pregnant and delivered the child. The child was required to satisfy the relevant criteria at the time of the Tribunal's decision.

Judge A Kelly found that the Tribunal had identified and considered each claim as articulated by the applicants, and that no jurisdictional error had occurred. The court determined that the Tribunal had properly considered the relevant criteria, including the interests of the child, in accordance with the law. Consequently, the application for judicial review was dismissed.

Orders