BZV16 v Minister for Immigration - [2019] FCCA 1103

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZV16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1103

Catchwords:
MIGRATION – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicants claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – applicants seek to engage in impermissible merits review – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

SZFWB v Minister for Immigration and Citizenship [2007] FCA 167

SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243

First Applicant:

BZV16

Second Applicant:

BZX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1989 of 2016

Judgment of:

Judge Dowdy

Hearing date:

28 March 2019

Delivered at:

Sydney

Delivered on:

28 March 2019

REPRESENTATION

The First Applicant appeared in person on her own and the Second Applicant’s behalf.

Counsel for the First Respondent:

Mr T. Reilly of Counsel

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 26 July 2016 is dismissed.
The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,400.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 17 May 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 1989 of 2016

BZV16

First Applicant

BZX16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The First Applicant in this proceeding is a male citizen of China, having been born 12 September 1975. The Second Applicant is a female citizen of China, having been born on 24 March 1980 (collectively, the Applicants).
By Application filed in this Court on 26 July 2016 they seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 October 2014 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

The Applicants were granted Visitor (Class FA) (Subclass 600) visas in Peking on 31 October 2013 which were valid for three months from the date of their arrival in Australia.
The Second Applicant arrived in Australia on 17 November 2013 and the First Applicant arrived in Australia on 1 December 2013. On 12 February 2014 they lodged their applications for Protection visas with the Second Applicant applying as a member of the family unit of the First Applicant and making no specific claims for protection in her own right.

Claims for…

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 1103
Decision Date: 28 March 2019

CaseChat Overview and Summary

The applicants, BZV16 and others, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate's refusal to grant them a protection visa. The applicants contended that the AAT's decision was affected by jurisdictional error. The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the AAT had committed a jurisdictional error in its review of the delegate's decision to refuse the protection visa applications. The applicants' claim for judicial review was predicated on the assertion that such an error had occurred, thereby vitiating the AAT's determination.

Dowdy J found that the applicants were seeking to engage in an impermissible merits review of the AAT's decision, rather than demonstrating a jurisdictional error. The Court concluded that no jurisdictional error had been identified in the AAT's proceedings or its decision-making process. Consequently, the application for judicial review was dismissed.

Orders