FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUB16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2634 |
| Catchwords: MIGRATION – Application for judicial review – separation of family members – whether the Tribunal failed to correctly apply the law – whether the Tribunal considered all the integers of the claim – application allowed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) |
| First Applicant: | AUB16 |
| Second Applicant: | AUC16 |
| Third Applicant: | AUM16 |
| Fourth Applicant: | AUN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 712 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Barrington |
| Solicitors for the Applicant: | Holding Redlich |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 24 March 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicants costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 712 of 2016
| AUB16 |
First Applicant
| AUC16 |
Second Applicant
| AUM16 |
Third Applicant
| AUN16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant is a 35 year old Malaysian woman, married to the second applicant, a 33 year old Nigerian citizen. The third and fourth applicants are the children of the first and second applicants (a son aged five and a son aged three). The third applicant is a Malaysian citizen, and the fourth applicant, who was born in Melbourne, is a Nigerian citizen.
The first applicant came to Australia in August 2012 on a student visa. She was joined by her partner and eldest child in May 2013 (also pursuant to the student visa). In October 2013, the first and second applicants applied for protection visas (including their child as a dependent; their second child being added by operation of law when he was born in April 2014).
In December 2014, a delegate of the Minister refused the applicants a visa, and they sought review in the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal (“AAT”). They were assisted by a migration agent in the review application. The agent lodged written submissions with the Tribunal on behalf of the applicants in March 2016, and the Tribunal heard oral evidence from them in the same month. On 24 March 2016, the Tribunal affirmed the delegate’s decision refusing the visa.
The applicants’ protection visa applications were based upon a claim that they had fled Malaysia fearing persecution by Malay gangsters associated with the first applicant’s family, claiming that they do not…
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- AGLC
- AUB16 v MIBP [2017] FCCA 2634
- Case
- [2017] FCCA 2634
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Tribunal had erred in law by failing to properly consider all the relevant factors presented in the applicant's case, and whether its application of the relevant migration legislation was correct in the circumstances.
Judge Riethmuller found that the Tribunal had indeed failed to consider all the integers of the applicant's claim, which constituted an error of law. The Court reasoned that a proper assessment of the applicant's circumstances required a comprehensive evaluation of all presented evidence and arguments, which had not occurred. Consequently, the application for judicial review was allowed.
Orders
Orders of the court
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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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