CTV16 v Minister for Immigration - [2019] FCCA 686

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTV16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 686

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Fiji – applicants disbelieved in critical respects – matter previously remitted to the Tribunal and re heard – second applicant attending the second hearing to give evidence and sworn in, but asked no questions – her evidence from the first Tribunal hearing rejected on credibility grounds – breach of s.425 of the Migration Act 1958 (Cth) established.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425

Cases cited:

AAM15 v Minister for Immigration [2018] FCA 1143

AEK15 v Minister for Immigration [2016] FCAFC 131

ANF16 v Minister for Home Affairs & Anor [2019] FCCA 150

ARG15 v Minister for Immigration (2016) 250 FCR 109

BWU16 v Minister for Immigration & Anor [2018] FCCA 3051

Hossain v Minister for Immigration [2018] HCA 34

Minister for Immigration v SZKTI (2009) 238 CLR 489

Minister for Immigration v SZNSP (2010) 184 FCR 485

NAHI v Minister for Immigration [2004] FCAFC 10

QAAT v Minister for Immigration (2005) 149 FCR 299

SBRF v Minister for Immigration (2008) 101 ALD 559

SZDFZ v Minister for Immigration & Anor [2008] FCA 390

SZEPZ v Minister for Immigration (2006) 159 FCR 291

SZFPA v Minister for Immigration [2008] FCA 1220

SZHKA v Minister for Immigration (2008)172 FCR 1

SZMZL v Minister for Immigration [2010] FCA 843

SZRMQ v Minister for Immigration (2013) 139 ALD 436

SZRMQ v Minister for Immigration & Anor [2014] HCA Trans 110

SZTIN v Minister for Immigration & Ors [2015] FCCA 1972

VQAB v Minister for Immigration [2004] FCAFC 104

First Applicant:

CTV16

Second Applicant:

CTW16

Third Applicant:

CTX16

Fourth Applicant:

CTY16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2705 of 2017

Judgment of:

Judge Driver

Hearing date:

19 March 2019

Delivered at:

Sydney

Delivered on:

9 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Silva

Solicitors for the Respondents:

Ms K Morris of Clayton Utz

ORDERS

A writ of certiorari shall issue removing the record of the Tribunal decision made on 2 August 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2705 of 2017

CTV16

First Applicant

CTW16

Second Applicant

CTX16

Third Applicant

CTY16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants, who are a father (first applicant), his wife (second applicant) and their two sons…

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 686
Decision Date: 9 May 2019

CaseChat Overview and Summary

The applicants, CTV16 and another, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse their applications for protection visas. The applicants claimed they feared harm in Fiji. This matter had previously been remitted to the Tribunal for a rehearing.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had breached section 425 of the *Migration Act 1958* (Cth) during the rehearing. Specifically, the court considered whether the Tribunal had failed to afford the second applicant a reasonable opportunity to give evidence.

Judge Driver found that the second applicant had attended the rehearing and was sworn in to give evidence. However, she was not asked any questions by the Tribunal. The Tribunal had rejected her evidence from the first hearing on credibility grounds. The court held that by failing to ask the second applicant any questions, the Tribunal had not afforded her a reasonable opportunity to give evidence as required by section 425 of the *Migration Act*.

Consequently, the court found that a breach of section 425 had been established. The decision of the Administrative Appeals Tribunal was set aside.

Orders