Cju17 v Minister for Immigration - [2018] FCCA 3742

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJU17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3742

Catchwords:
MIGRATION – Application for judicial review – no protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R, 424A

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

First Applicant:

CJU17

Second Applicant:

CJV17

Third Applicant:

CJW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1170 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

19 September 2018

Date of Last Submission:

19 September 2018

Delivered at:

Melbourne

Delivered on:

17 December 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1170 of 2017

CJU17

First Applicant

CJV17

Second Applicant

CJW17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 17 May 2017. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.
The applicant is a citizen of India. The applicant’s two children are the secondary applicants: they rely entirely upon the claims of the applicant. The applicant is a single divorced woman, having separated from her husband in India in 2005.
The applicant has resided in Australia since March 2010 when she entered on a tourist visa. The applicant then sought a subclass 835 remaining relative visa. The remaining relative visa was refused on

5 November 2012. The Migration Review Tribunal (as it then was) affirmed the delegate’s decision on 19 March 2013. Thereafter, the applicant sought ministerial intervention on 27 August 2013 which was refused on 25 July 2017.
The applicant applied for a protection visa on 4 September 2014. The delegate refused to grant the visa on 6 February 2015. That decision was upheld by the Tribunal on 17 May 2017. The applicant required the assistance of a Gujarati interpreter, which was provided by the Court for the hearing.

The applicant’s claims

The applicant’s claims are summarised at [23] to [24] of the Tribunal’s decision as follows:
23. The applicants’ claims can be summarised as follows. The applicant, who was born in 1972 in Vadodara/formerly known as Baroda, Gujurat, is 44 years old and is divorced with two children, aged 13 and 11, both of whom are also applicants. The applicant fears that she and the children will be subject to harm from her ex-husband and his family because they want to gain control over her mother’s property. As a single divorced woman in India with no-one but her widowed mother to support her,…

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: [2018] FCCA 3742
Decision Date: 17 December 2018

CaseChat Overview and Summary

This matter came before Judge Riethmuller of the Federal Circuit Court of Australia for judicial review of a decision made by the Migration Review Tribunal. The applicant sought to challenge the Tribunal's refusal to grant a protection visa. The core of the dispute concerned allegations that the Tribunal committed jurisdictional error in its assessment of the applicant's claims.

The applicant raised three grounds for review. Firstly, it was argued that the Tribunal failed to comply with section 414 of the Migration Act 1958 by not according procedural fairness. This encompassed claims that the delegate should have notified the applicants of the specific criterion under s.36(2)(aa) being considered, failed to invite a response before refusing the visa, and did not properly notify the applicants regarding the basis of their claim (Refugee Convention or complementary protection). Secondly, the applicant contended that the Tribunal misconstrued and misapplied section 91R(1) of the Act, particularly in its assessment of the risk of harm from the applicant's ex-husband, and that the Tribunal's reasoning lacked adequate reference to evidence or appropriate authorities concerning India. Finally, the applicant alleged jurisdictional error in the Tribunal's misconstruction or misapplication of sections 5 and 36(2)(aa) of the Act, specifically regarding the assessment of a real risk of significant harm upon removal to India.

The Court noted that the applicant was unable to address any of the grounds set out in her written application during the hearing. Consequently, the application for judicial review was dismissed.

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

The application sets out three grounds as follows:1. The decision of the Tribunal is affected by jurisdictional error as it failed to comply with section 414 of the Migration Act 1958 (the Act).Particularsa. The delegate (reviewer) was under a duty to accord the applicants procedural fairness when determining whether to recommend the applicants are not entitled to protection.b. The duty to accord procedural fairness required the delegate to notify the applicants that one of the issues the delegate intended to consider was whether the applicants met the criterion specified in s.36(2)(aa) of the Act.c. The delegate proceeds to assess the applicants’ application and refused the Protection visa on 6 Feb 2015 without inviting the applicants to respond.d. The delegate failed to properly notify the applicants whether the application will be considered as a refugee under the 1951 Refugees Conventions or under the complementary protectione. The delegate failed to invite the applicants to comment and present evidence before refusing the protection visa. See SZSRX v Minister for Immigration & Anor [2014] FCCA 2447.f. Tribunal failed to assess the applicant’s claim under the complementary protection criteria s.36(2)(aa) the Act.g. Although accepting the applicant’s husband and harassed the applicant and the applicant had sought police protection the Tribunal refused to grant the applicants Protection visa.2. In the alternative to ground 1 above, the Tribunal misconstrued and misapplied s 91R (1) of the Act.Particularsa. Although accepting the applicant’s husband abused and harassed the applicant and the applicant has sought police protection the Tribunal refused to grant the applicants Protection visa (paragraph 65 of the AAT decision), the Tribunal then went on to decide at paragraph 69 of the decision that ‘’The Tribunal does not accept any of the applicants faces a real chance of serious harm or real risk of significant harm at the hands of her ex-husband for this reason’’. Applying Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 2016 CLR 323, the Tribunal is required in a written statement to set out (inter alia) the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact are based.b. The Tribunal also made references to US Department of State and UK Home office in relation to effective protection from the authorities without referring to any references or authorities from India.3. The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied ss5 and 36(2) (aa) of the Act.Particularsa. The Tribunal although accepts there are some grounds which meets the criteria in s36 (2)(aa) as necessary and foreseeable consequence of being removed from Australia to India failed to consider there is a real risk that the applicants will suffer significant harm. In the hearing before this Court, the applicant was unable to address any of the grounds set out in her written application.