CEH20 v Minister for Immigration - [2021] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEH20 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 2212

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to take into account a relevant consideration –whether the Tribunal made a decision that was legally unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 424A, 467, 501

Applicant:

CEH20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1176 of 2020

Judgment of:

Judge Street

Hearing date:

7 September 2020

Date of Last Submission:

7 September 2020

Delivered at:

Sydney

Delivered on:

24 February 2021

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents:

Ms C Saunders, MinterEllison, via Microsoft Teams

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney

SYG 1176 of 2020

CEH20

Applicant

And

Minister for Immigration, citizenship, migrant services and multicultural affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

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 24 April 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.
The applicant was found to be a citizen of China and her claims were assessed against that country.
The applicant first arrived in Australia in 2009 on a Visitor (subclass 676) visa and departed Australia on that visa later in 2009. The applicant next arrived in Australia on a Provisional Partner (subclause 309) visa in 2009 and then departed Australia in 2010. The applicant next arrived in Australia in 2011 on a Provisional Partner (subclass 309) visa. In 2012, the applicant was granted a Spouse (Migrant) (subclass 100) visa. In 2013, the applicant again departed Australia on a Spouse (Migrant) (subclass 100) visa and returned to Australia a month later. In 2019, the Spouse (Migrant) (subclass 100) visa was cancelled under s 501 of the Act.
On 5 April 2017, the applicant applied for revocation of the cancellation. On 14 September 2017, the cancellation was decided not to be revoked. The applicant was released from criminal detention on 16 September 2017 and placed into immigration detention.
The applicant applied for review of the non-revocation of cancellation on 17 September 2017. The decision was affirmed by the Tribunal on 27 November 2017. The applicant applied for a judicial review on 11 December 2017.
A Federal Court upheld the non-revocation of the cancellation of the Spouse (Migrant) (subclass 100) visa. On 9 August 2018, the applicant applied to the Full Court of the Federal Court for review, which upheld the non-revocation…

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.

Continue reading CEH20 v Minister for Immigration

Details

AGLC: CEH20 v Minister for Immigration [2021] FCCA 2212
Case: [2021] FCCA 2212
Decision Date: 24 February 2021

CaseChat Overview and Summary

The applicant, CEH20, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a Protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around allegations that the AAT had failed to consider relevant information, acted unreasonably, and denied the applicant procedural fairness in its assessment of the Protection visa application.

Street J was required to determine whether the AAT had committed jurisdictional error by failing to take into account a relevant consideration, by making a decision that was legally unreasonable, or by denying the applicant procedural fairness. The applicant contended that these failures amounted to jurisdictional error, which would vitiate the Tribunal's decision.

In dismissing the application, Street J found that no jurisdictional error had been made out. The reasoning, though not detailed in the provided text, indicates that the court was not satisfied that the AAT had overlooked any material considerations, acted in a manner that could be characterised as legally unreasonable, or breached the principles of procedural fairness. Consequently, the applicant's challenge to the AAT's decision failed.

Orders