ATU16 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

ATU16 v Minister for Home Affairs [2019] FCA 1295

Appeal from:

ATU16 v Minister for Immigration & Anor [2018] FCCA 686

File number:

VID 411 of 2018

Judge:

SNADEN J

Date of judgment:

15 August 2019

Catchwords:

MIGRATION – protection visa – appeal from a decision of the Federal Circuit Court of Australia – application for judicial review of a decision of the Administrative Appeals Tribunal – decision by the first respondent refusing an application for a protection visa – whether the Tribunal decision was a product of jurisdictional error – judgment delivered ex tempore – appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

ATU16 v Minister for Immigration & Anor [2018] FCCA 686

MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 236 FCR 593

Date of hearing:

15 August 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

19

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr C Tran

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 411 of 2018

BETWEEN:

ATU16

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	15 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs, to be assessed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

SNADEN J:

1. By notice of appeal dated 16 April 2018, the appellant appeals from a judgment of the Federal Circuit Court of Australia (hereafter, the “FCCA”):  ATU16 v Minister for Immigration & Anor [2018] FCCA 686 (Judge Kelly). By that judgment, the FCCA dismissed an application that the appellant made to that court for relief in the nature of certiorari and mandamus, directed to a decision that the second respondent (hereafter, the “Tribunal”) made on 11 March 2016.  By that decision (hereafter, the “Tribunal decision”), the Tribunal affirmed an earlier decision made by or on behalf of the first respondent (hereafter, the “Minister”), by which an application by the appellant for a protection visa made under the Migration Act 1958 (Cth) (hereafter, the “Act”), was refused.  I will refer to that application hereafter, as the “Visa Application”. 

2. The appellant is a Pakistani citizen. In his Visa Application, he claimed to hold a well-founded fear that, if he returned to Pakistan, he would be subjected to harm; or that there was a real risk that he would be subjected to such harm; in each case of the kind or kinds sufficient to satisfy the criteria…