CCB16 v Minister for Immigration - [2018] FCCA 2732

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2732

Catchwords
MIGRATION – Applicants arrived in Australia on sponsored family (class FA) (subclass 600) visa – applicants then living in Australia illegally – application for protection visas – tribunal in receipt of documents covered by a certificate given under s 438 of the Migration Act – applicants not credible witnesses – tribunal did not err in its handling of documents covered by s 438 certificate – application dismissed.

Legislation

Migration Act 1958, ss 36(2)(a), 36(2)(aa), 438(1)(b)

First Applicant:

CCB16

Second Applicant

CCC16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1633 of 2016

Judgment of:

His Honour Judge Wilson

Hearing date:

29 August 2017, 9 March 2018 and 15 August 2018

Date of Last Submission:

15 August 2018

Delivered at:

Melbourne

Delivered on:

5 September 2018

REPRESENTATION

First Applicant:

In person

Solicitors for the First Applicant

None

Second Applicant

In person

Solicitors for the Second Applicant:

None

Counsel for the First Respondent:

Mr L Brown on 29 August 2017

Mr M Hosking on 9 March 2018

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 29 July 2016 and amended on 29 August 2017 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7 328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1633 of 2016

CCB16

First Applicant

And

CCC16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application for judicial review raised for determination the single question whether the Administrative Appeals Tribunal fell into jurisdictional error by failing to disclose a certificate given under s 438(1)(b) of the Migration Act (“Act”) dated 22 February 2016 notifying the tribunal that certain information should not be disclosed to the applicants.
When I heard the application for judicial review,…

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: [2018] FCCA 2732
Decision Date: 5 September 2018

CaseChat Overview and Summary

The applicants, who arrived in Australia on a sponsored family (class FA) (subclass 600) visa and subsequently remained in Australia unlawfully, sought protection visas. The Minister for Immigration was the respondent. The matter came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Administrative Appeals Tribunal erred in its handling of documents that were subject to a certificate issued under section 438 of the *Migration Act 1958* (Cth). This involved determining the proper application of section 438 in circumstances where the applicants' credibility was in question.

His Honour Judge Wilson found that the Tribunal did not err in its approach to the documents covered by the section 438 certificate. The Court reasoned that the Tribunal was entitled to consider the applicants not credible witnesses, and this assessment informed how the Tribunal dealt with the evidence, including that protected by the certificate. The Court upheld the Tribunal's decision to dismiss the applications for protection visas.

Orders