Cij16 v Minister for Home Affairs

[2019] FCA 65

FEDERAL COURT OF AUSTRALIA

CIJ16 v Minister for Home Affairs [2019] FCA 65

Appeal from:	CIJ16 & Ors v Minister for Immigration & Anor [2018] FCCA 2980
File number:	NSD 2051 of 2018
Judge:	JAGOT J
Date of judgment:	4 February 2019
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal –jurisdictional error – credibility - whether Tribunal misapprehended evidence – appeal dismissed
Cases cited:	CIJ16 and others v Minister for Immigration and another [2018] FCCA 2980
Date of hearing:	4 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Appellants:	A N Silva
Counsel for the First Respondent:	A Douglas-Baker
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

NSD 2051 of 2018

BETWEEN:

CIJ16

First Appellant

CIQ16

Second Appellant

CIS16

Fourth Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	4 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the first respondent’s costs of the appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. This is an appeal against an order of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal, CIJ16 and others v Minister for Immigration and another [2018] FCCA 2980. Before the Federal Circuit Court a number of grounds of review were put on behalf of the appellants. In this Court, however, the appeal is limited to a single ground, ground 1, as outlined in the notice of appeal. Further, the first appellant alone made arguments in support of this sole ground of appeal and thus is referred to as the appellant below for convenience (the other appellants’ claims being dependent on those of the first appellant as members of a family unit). Ground 1 of the appeal is in these terms:

   The learned primary judge erred by not finding that the tribunal made jurisdictional error since it misapprehended the main applicant's evidence about his interaction with the police in 2012 and used that misapprehended evidence to make an adverse credibility finding.

2. This ground concerns what is set out in [64] of the Tribunal’s reasons, which in turn depends upon what is set out in [27] and [29].  In [64] the Tribunal said:

   The applicant gave conflicting accounts of his interactions with the police following the alleged assault in 2012. He told the delegate that an Indian officer told him he would not be assisted because of his ethnicity, but told me at the hearing that the police had told him they would investigate, but he had left the country and did not know whether they had taken any action in response to his complaint…