CPW15 v Minister for Home Affairs - [2018] FCA 1919

FEDERAL COURT OF AUSTRALIA
CPW15 v Minister for Home Affairs [2018] FCA 1919

Appeal from: CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307

File number: NSD 972 of 2018

Judge: MCKERRACHER J

Date of judgment: 28 November 2018

Date of publication of reasons: 29 November 2018

Catchwords:
MIGRATION – protection visa applications – appeal from the Federal Circuit Court of Australia – where the primary judge concluded the appellants’ son should not be joined as a party – where the primary judge concluded the application sought impermissible merits review – consideration of duties owed to accord procedural fairness

Held: appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 412(2), 425

Cases cited:
Coulton v Holcombe (1986) 162 CLR 1

Hamod v New South Wales [2011] NSWCA 375

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

O’Brien v Komesaroff (1982) 150 CLR 310

R v Zorad (1990) 19 NSWLR 91

Shrestha v Migration Review Tribunal (2015) 229 FCR 301

SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588

Date of hearing: 28 November 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 38

Counsel for the Appellants: The Appellants appeared in person with the assistance of an interpreter

Counsel for the First Respondent: Ms K Evans

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs

ORDERS

NSD 972 of 2018

BETWEEN:
CPW15

First Appellant

CPX15

Second Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

28 NOVEMBER 2018

THE COURT ORDERS THAT:
1.The appeal be dismissed
2.The appellants pay the costs of the first respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT
MCKERRACHER J:

This is an appeal from a decision made by the Federal Circuit Court of Australia on 25 May 2018: CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307. By that decision the Federal Circuit Court dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal. That decision had been given some time before on 18 November 2015 and the Tribunal there affirmed the decision of the delegate of the Minister for Home Affairs to refuse to grant the first and second appellant’s Protection (Class XA) visas (protection visas).
BACKGROUND
The appellants are both citizens of India. The first appellant arrived in Australia on 19 December 2012, as a tourist. The second appellant, his wife, arrived in Australia on 12 May 2013. She did…

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] FCA 1919
Decision Date: 28 November 2018

CaseChat Overview and Summary

The matter before the court was an appeal from the Federal Circuit Court of Australia, brought by the appellants against the Minister for Home Affairs. The dispute revolved around the appellants' protection visa applications, specifically concerning the decision of the primary judge that their son should not be joined as a party and that the application sought impermissible merits review. The court was required to consider whether the primary judge's decision was correct and whether the appellants were owed any procedural fairness.

The central legal issues in this appeal were whether the appellants had established any appellable error in the decision of the primary judge or if there was any jurisdictional error in the decision of the Tribunal. Additionally, the court examined the duties owed to accord procedural fairness in the context of the appellants' case. The court assessed the arguments presented by both parties and reviewed the reasoning and evidence provided by the primary judge.

The court concluded that the appellants had failed to establish any appellable error in the decision of the primary judge or any jurisdictional error in the decision of the Tribunal. The basis for the delegate's decision was the lack of acceptance that the first appellant had any genuine fears as a Sikh in India, an issue the appellants were on notice of being determinative on review. The appeal did not succeed, and leave to rely on the new grounds generally must be refused. As a result, the court dismissed the appeal with costs.

ORDERS:
1. The appeal be dismissed.
2. The appellants pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed

2. The appellants pay the costs of the first respondent, to be taxed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the basis for that delegate’s decision was also the delegate’s lack of acceptance that the first appellant had any genuine fears as a Sikh in India, the appellants were on notice of this being a determinative issue on review. This ground could not succeed and leave to rely on the new grounds generally must be refused. CONCLUSION I must conclude that notice of appeal fails to establish any appellable error in the decision of the primary judge or jurisdictional error in the decision of the Tribunal. It follows that the appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307
File number:	NSD 972 of 2018
Judge:	MCKERRACHER J
Date of judgment:	28 November 2018
Date of publication of reasons:	29 November 2018
Catchwords:	MIGRATION – protection visa applications – appeal from the Federal Circuit Court of Australia – where the primary judge concluded the appellants’ son should not be joined as a party – where the primary judge concluded the application sought impermissible merits review – consideration of duties owed to accord procedural fairness Held: appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 412(2), 425
Cases cited:	Coulton v Holcombe (1986) 162 CLR 1 Hamod v New South Wales [2011] NSWCA 375 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 O’Brien v Komesaroff (1982) 150 CLR 310 R v Zorad (1990) 19 NSWLR 91 Shrestha v Migration Review Tribunal (2015) 229 FCR 301 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	28 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Appellants:	The Appellants appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms K Evans
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to costs

JUDGE:	MCKERRACHER J
DATE OF ORDER:	28 NOVEMBER 2018