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 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Teoh [ 1995] HCA 20; (1995) 183 CLR 273 Nweke v Minister for Immigration and Citizenship [2012] FCA 266 |
| 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…
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- Case
- [2020] FCCA 1083
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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