BTT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 126
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 126
File number: PEG 335 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 2 March 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – where applicants are members of the same family unit to applicant in a related matter – where claims of jurisdictional error are based on Authority decision in related matter – no jurisdictional error in related matter or this matter – application dismissed Legislation: Migration Act 1958 (Cth), ss 36, 473CA, 476 Cases cited: DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517; [2020] FCAFC 72
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 18 October 2021 Place: Perth Counsel for the Applicants: Mr H Glenister Solicitor for the Applicants: William Gerard Legal Counsel for the First Respondent: Mr B Kaplan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS
PEG 335 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTT16
First Applicant
BTV16
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants seek judicial review under s 476 of the Migration Act 1958 (Cth)
(Migration Act) of a decision made by the Immigration Assessment Authority (Authority) on 1 October 2020. The Authority affirmed a decision made by a delegate of the Minister not to grant the applicants protection visas.
The applicants in this proceeding are members of the same family unit as the applicant in another proceeding before this Court, who I will refer to in this judgment as the wife applicant. Although the applicants in this proceeding and the wife applicant were all included on the same application for a protection visa, the Authority wrote a separate decision in relation to the wife applicant, as the wife applicant advanced a claim that she requested be kept confidential from her family members. The applicants allege that the Authority made a jurisdictional error in assessing the wife applicant’s claims, and that claimed jurisdictional error vitiated the Authority decision in relation to the applicants.
I have found that there was no jurisdictional error in the decision made by the Authority in relation to the wife applicant. For reasons explained below, I also find that there is no jurisdictional error in the Authority decision relating to the applicants to this proceeding. Accordingly, I dismiss the application for judicial review.
BACKGROUND
The applicants are Sri Lankan citizens who arrived in Australia in September 2012. The first applicant, BTT16, is the husband of the wife applicant. The second applicant, BTV16, is the son of the wife applicant and the stepson of the first applicant.
The applicants lodged an application for a protection visa on 19 August 2015. The first applicant and the wife applicant both made claims for protection, and the second applicant did not advance his own claims for protection.
On 24 May 2016 a delegate of the Minister made a decision not to grant protection visas to the applicants. The matters were referred to the Authority pursuant to s 473CA of the Migration Act.
The Authority purported to affirm the delegate’s decision on 1 July 2016, but this decision was quashed by the Federal Court on 28 February 2019. The Authority again purported to affirm the delegate’s decision on 23 May 2019, but this decision was quashed by the Federal Circuit Court on 5 August 2020, and the matter was again remitted to the Authority.
Following this remittal to the Authority, the Authority made two decisions on 1 October 2020. The first decision related to the applicants in this proceeding, and it is this decision that is subject to judicial review by this application to the Court. The second decision related to the wife applicant and, as indicated above, the wife applicant has brought a separate proceeding to seek judicial review of that decision.
Because of the nature of the ground raised in the application to this Court, it is not necessary to refer in any detail to the Authority decision. It is sufficient to note that the Authority found that the applicants did not meet the criteria for a protection visa in ss 36(2)(a) or 36(2)(aa) of the Migration Act. Importantly, having found that neither applicant in this case, nor the wife applicant, met the criteria in ss 36(2)(a) or 36(2)(aa), the Authority also found that the applicants did not meet the family unit criteria in ss 36(2)(b)(i) or 36(2)(c)(i) of the Migration Act.
PROCEEDINGS IN THIS COURT
The single ground of application reads:
The decision of the Second Respondent (Authority) is affected by jurisdictional error, in that it formed a state of satisfaction that the First Applicant and the Second Applicant did not satisfy the criterion for the grant of a protection visa set out in s 36(2)(b) or
s 36(2)(c) of the Migration Act 1958 (Cth) on the basis of a separate decision by the Authority that an immediate family member of the First Applicant and the Second Applicant did not satisfy the criterion for the grant of a protection visa set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) which was affected by jurisdictional error.Essentially, the submission advanced by the applicants is that there is jurisdictional error in the decision relating to the wife applicant, and that, as a result of the jurisdictional error in that decision, the Authority’s decision in this case is likewise affected by jurisdictional error.
The applicants rely on Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55] in support of the proposition that a jurisdictional error in one decision can vitiate another decision where those decisions are inextricably linked. They further rely on DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517; [2020] FCAFC 72 (DNQ18) at [63] as authority for the proposition that a jurisdictional error in a decision relating to one of the immediate family members in a protection visa application can be an error that affects all applicants.
The Minister agrees, on the basis of DNQ18, that if I find jurisdictional error and allow the application in relation to the wife applicant, then it is appropriate to also find jurisdictional error and allow the application in this proceeding.
Both parties agree that if jurisdictional error is not established in the Authority decision relating to the wife applicant, then this application will also fail.
I have found that the wife applicant did not establish jurisdictional error in the Authority decision relating to her. I have provided reasons for that finding in a separate judgment.
I agree with the position accepted by both parties that, as a consequence of my finding that there is no jurisdictional error in the Authority decision relating to the wife applicant, the ground raised by the applicants in the present proceeding cannot succeed.
Accordingly, I dismiss the application.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 March 2022
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