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AUB16 v MIBP

AUB16 v MIBP

Case [2017] FCCA 2634 31 October 2017

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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)

Cases cited:

Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141
MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620
SZRSNv Minister for Immigration and Citizenship [2013] FCA 751

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…

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.

Continue reading AUB16 v MIBP

Details

AGLC: AUB16 v MIBP [2017] FCCA 2634
Case: [2017] FCCA 2634
Decision Date: 31 October 2017

CaseChat Overview and Summary

The applicant, AUB16, sought judicial review of a decision made by the Migration and Investment Review Tribunal (the Tribunal). The dispute concerned the separation of family members, with the applicant alleging that the Tribunal failed to correctly apply the law and consider all aspects of their claim. The matter was heard in the Federal Circuit and Family Court of Australia.

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