AXT16 v Minister for Immigration - [2019] FCCA 2730

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXT16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2730

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 a Delegate of the Minister for Immigration not to grant to her a Protection visa – applicant claimed to fear harm from money lenders, contractors and the authorities in China – applicant claimed lacked of procedural fairness and failure to consider her claims against the Refugees Convention criterion – Administrative Appeals Tribunal made adverse credibility findings – no procedural unfairness and Administrative Appeals Tribunal bound in the circumstances not to consider the Refugees Convention criterion but only the complementary protection criterion – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 438

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
BTU18 v Minister for Home Affairs [2019] FCA 540
Minister for Immigration and Border Protection v SZMTA& Another (2019) 363 ALR 599
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

Applicant:

AXT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 959 of 2016

Judgment of:

Judge Dowdy

Hearing date:

10 September 2019

Delivered at:

Sydney

Delivered on:

10 September 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms K. Evans

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 21 April 2016 is dismissed.
The Applicant 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 of Immigration and Border Protection’ 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 23 October 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 959 of 2016

AXT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a female citizen of China aged 56 years, having been born on 10 March 1963.
By Application filed in this Court on 21 April 2016 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 1 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 July 2014 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (

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 2730
Decision Date: 10 September 2019

CaseChat Overview and Summary

The applicant, AXT16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Immigration's refusal to grant her a Protection visa. The applicant claimed to fear harm from money lenders, contractors, and authorities in China. She contended that the AAT had failed to afford her procedural fairness and had not properly considered her claims against the criteria set out in the Refugees Convention.

The central legal issues before the court were whether the AAT had committed jurisdictional error by failing to provide procedural fairness to the applicant, and whether the AAT was bound, in the circumstances of the case, not to consider the Refugees Convention criterion but only the complementary protection criterion.

Dowdy J found that the AAT had not engaged in any procedural unfairness. Furthermore, His Honour determined that the AAT was indeed bound, by the specific circumstances presented, to consider only the complementary protection criterion and not the Refugees Convention criterion. Consequently, no jurisdictional error was found.

The application for judicial review was dismissed.

Orders