CIF18 v Minister for Home Affairs - [2019] FCCA 346

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIF18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 346

Catchwords:
MIGRATION – Application for protection visas – United Nations Convention on the Rights of the Child – convention not binding – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DD, 473DE, 473DB

Cases cited:

BSG16 v Minister for Immigration and Border Protection [2017] FCCA 1478

Singh v Minister for Immigration and Border Protection & Anor [2018] FCCA 3180
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1
Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] 144 FCR
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

First Applicant:

CIF18

Second Applicant:

CII18

Third Applicant:

CIJ18

Fourth Applicant:

CIK18

Fifth Applicant:

CIL18

Sixth Applicant:

CIM18

Seventh Applicant:

CIN18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 439 of 2018

Judgment of:

Judge Egan

Hearing date:

30 January 2019

Date of Last Submission:

30 January 2019

Delivered at:

Brisbane

Delivered on:

30 January 2019

REPRESENTATION

Counsel for the Applicants:

Mr Hii

Solicitors for the Applicants:

Australasia Law

Solicitors for the First Respondent:

Ms Helsdon

ORDERS

IT IS ORDERED THAT:

The application for extension of time to file the application for review out of time is granted.
The applicant is ordered to pay the first respondent’s costs of and incidental to such amendment, including the costs of the appearance at Court on 24 January 2019 thrown away by reason of the failure on the part of the applicant to comply with Court orders, such costs to be assessed on the applicable Federal Circuit Court scale of costs unless agreed.
The amended application for review filed on 23 January 2019 is dismissed.
The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the proceeding fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 439 of 2018

CIF18

First Applicant

CII18

Second Applicant

CIJ18

Third Applicant

CIK18

Fourth Applicant

CIL18

Fifth Applicant

CIM18

Sixth Applicant

CIN18

Seventh Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first applicant and the second applicant (respectively the male and female parents of the other applicants) filed an originating application for review on 30 April 2018. That application had one ground, namely: that their five children, all under the age of eighteen (18), were entitled to protection by the Australian Government under the Convention on the Rights of the Child, of which the Commonwealth of Australia is a signatory.
Subsequently, the applicant filed submissions, on 25 October 2018, which set out three grounds for review. The three grounds were set out in paragraph 2 of those submissions as follows:
(a) (First Ground) the…

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 346
Decision Date: 30 January 2019

CaseChat Overview and Summary

The applicant, CIF18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the assessment of the applicant's claims for protection, specifically whether the applicant had established a well-founded fear of persecution. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims. This involved determining whether the delegate had failed to properly consider all relevant evidence, including the applicant's personal circumstances and the country information pertaining to their claimed country of origin. The Court was also required to consider whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

Judge Egan found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had not properly engaged with the country information provided. The Court reiterated the principle that a delegate must undertake a holistic assessment of the evidence, giving due weight to all relevant factors. The delegate's failure to properly consider the cumulative effect of the applicant's claims and the available country information led to an error of law. Consequently, the Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders