CFE16 v Minister and CFD16 v Minister - [2020] FCCA 1083

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFE16 v MINISTER FOR IMMIGRATION & ANOR and CFD16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1083

Catchwords:
MIGRATION – Applicant for judicial review – protection visa – United Nations Convention on the Rights of the Child – where Tribunal failed to consider best interests of the child as a primary consideration – application allowed – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.46A, 101,107, 109, 140

Migration Regulations 1994 (Cth), reg.2.41
United Nations Convention on the Rights of the Child

Cases cited:

Minister for Immigration and Ethnic Affairs v Teoh [ 1995] HCA 20; (1995) 183 CLR 273
Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568

Nweke v Minister for Immigration and Citizenship [2012] FCA 266
Wilson v Assistant Minister for Immigration and Border Protection [2017] FCA 1337
Brown v Minister for Immigration and Border Protection [2015] FCAFC 141

Applicant:

CFE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1718 of 2016

Applicant:

CFD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1719 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

17 February 2020

Date of Last Submission:

17 February 2020

Delivered at:

Melbourne

Delivered on:

7 May 2020

REPRESENTATION

Counsel for the Applicant in proceedings MLG1718/2016 and proceedings MLG1719/2016:

Mr Hartley

Solicitors for the Applicant in proceedings MLG1718/2016 and proceedings MLG1719/2016:

Asylum Seeker Resource Centre

Counsel for the First Respondent in proceedings MLG1718/2016 and proceedings MLG1719/2016:

Mr Hosking

Solicitors for the First Respondent in proceedings MLG1718/2016 and proceedings MLG1719/2016:

Mills Oakley Lawyers

ORDERS

IN PROCEEDINGS MLG 1718 of 2016

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 July 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

IN PROCEEDINGS MLG 1719 of 2016

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 July 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1718 of 2016

CFE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

MLG 1719 of 2016

CFD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants in these proceedings are husband (CFD16) and wife (CFE16). They rely on the same facts and circumstances of their applications. The applicants seek judicial review of the decisions of the Administrative Appeals Tribunal (‘the Tribunal’) made on 21 July 2016 with respect to each of them. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s visas under s.109 of the Migration Act 1958 (Cth).

Background

Each of the applicants are…

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: [2020] FCCA 1083
Decision Date: 7 May 2020

CaseChat Overview and Summary

In CFE16 v Minister and CFD16 v Minister, the Federal Circuit Court of Australia considered applications for judicial review concerning decisions made by the Minister regarding protection visas. The applicants, identified as CFE16 and CFD16, sought to challenge these decisions.

The central legal issue before the Court was whether the relevant decision-maker had failed to consider the best interests of the child as a primary consideration, as mandated by the United Nations Convention on the Rights of the Child, in determining the applications for protection visas.

Judge Riethmuller found that the Tribunal had indeed failed to give paramount consideration to the best interests of the child. Applying the principles established in international human rights law and domestic administrative law, the Court determined that this failure constituted a reviewable error. Consequently, the applications for judicial review were allowed, and the Court ordered that the writs be issued.

Orders