Azm20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3653

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZM20 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3653

File number(s):	SYG 550 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	02 December 2020
Catchwords:	MIGRATION – Administrative Appeals Tribunal – applications for Protection Visas – whether the Tribunal failed to comply with its obligations under section 425 of the Migration Act 1958 (Cth) – whether the Tribunal disallowed the second applicant a real and meaningful hearing - jurisdictional error found – application allowed.
Legislation:	Migration Act 1958 (Cth) ss 425, 476.
Number of paragraphs:	11
Date of hearing:	02 December 2020
Place:	Sydney
Counsel for the Applicants:	Mr J. Young
Solicitors for the Applicants:	Shiba Legal
Counsel for the First Respondent:	Mr G. Johnston
Solicitors for the First Respondent:	Minter Ellison

ORDERS

SYG 550 of 2020

BETWEEN:

AZM20

First Applicant

AZN20
Second Applicant

AZO20
Third Applicant

AZP20
Fourth Applicant

AZQ20
Fifth Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	2 DECEMBER 2020

THE COURT ORDERS THAT:

1.A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision dated 7 February 2020.

2.A writ in the nature of mandamus is issued requiring the second respondent to determine the review application before it according to law by a differently constituted Administrative Appeals Tribunal.

3.The first respondent pay the applicants’ costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 February 2020 affirming a decision of a delegate of the minister (“the Delegate”) not to grant the applicants Protection Visas (“the Visas”).

2. The applicants are citizens of Iraq and their claims were assessed against that country. The first and second applicants are husband and wife, and the third, fourth and fifth are children in respect of whom there has been appointed a litigation guardian.

3. By the time of the hearing before the Tribunal, both the first applicant and the second applicant advanced claims of fear of harm.  Relevantly, in relation to the second applicant, there was a claim to fear harm by reason of being a member of a social group, being Christian women, and by reason of being a member of a social group, being Iraqi women.  Those two claims were raised in a written submission sent to the Tribunal prior to the hearing.  It is also the case that the response to the invitation to attend the hearing identified a desire to adduce evidence from the second applicant.

4. The transcript of the hearing has been tendered. It is the case that an inappropriate question was asked by the Tribunal member of the second applicant to the effect that her claims were the same as her husband’s and she answered, “Yes”.  That simply was not factually correct.

5. There is a further reference in the Tribunal’s reasons to the two primary applicants which suggests the Tribunal did appreciate that there were claims being advanced by the second applicant, and there is other language in the transcript that supports the Tribunal addressing both the first and second applicants jointly.

6. However, the Court accepts the submission advanced by Mr Young that there is a difference between identifying claims and being given the opportunity to give evidence and present arguments. While it is the case that the Tribunal did comply with its obligations under s 425 of the Act in relation to the first applicant, the Court finds that there was not compliance with the requirements of s 425 of the Act in respect of the second applicant.

7. Mr Johnson has suggested that the reference to the claims of the first applicant being the same as the second applicant was the giving of an opportunity to the second applicant.  The Court does not accept that proposition.

8. There is a further exchange at the end of the first applicant’s evidence in which the Tribunal member identifies that the Tribunal member has no other questions and poses a proposition:

   Is there anything you would like to raise before we bring in the witnesses?

   There is a response by the interpreter.

   Your Honour, I have a question myself, do you mind?

   The response:

   Sorry, I have a question myself, yes.  I have a second case to hear.  You’ve just got to give them a call.  It’s here – the case is here too, so I will just go up to reception.

   And the member then asks:

   So we save time, you bring the first witness in and I will just tell them.

9. There was no other invitation or engagement that could be described as an invitation to the second applicant to give evidence.  I accept Mr Young’s submission that the engagement at question 133 is not the inviting of an opportunity to the second applicant to give evidence and present arguments.

10. The second applicant did not have a real and meaningful hearing because of the interaction between the different claims.  There has been a failure by the Tribunal to conduct a review, as required within the statutory regime.  That amounts to a jurisdictional error, that jurisdictional error being the failure to give the second applicant a real and meaningful hearing in respect of her claims to fear harm, and, because of the overlap of those claims, that is a jurisdictional error impacting on the claims of the other family applicants.

11. The Court finds that the Tribunal’s decision is the subject of a jurisdictional error and should be quashed.

I certify that the preceding eleven (11) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       28 May 2021