DEF17 v Minister for Immigration - [2018] FCCA 3741

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEF17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3741

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in China – principal applicant disbelieved in important respects and other fears found not to be well founded – whether the Tribunal breached s.424AA or whether the Tribunal hearing was unfair because of interpretation errors considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

Cases cited:

BZAID v Minister for Immigration (2016) 242 FCR 310

NAOA v Minister For Immigration [2004] FCAFC 241

SAAP & Anor v Minister for Immigration & Anor (2005) 228 CLR 294

SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26

SZGSI & Anor v Minister for Immigration & Anor (2007) 160 FCR 506

SZOYU v Minister for Immigration [2012] FCA 936

SZRMQ v Minister for Immigration (2013) 219 FCR 212

VAF v Minister for Immigration [2004] FCAFC 123

First Applicant:

DEF17

Second Applicant:

DEG17

Third Applicant:

DEI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2227 of 2017

Judgment of:

Judge Driver

Hearing date:

14 December 2018

Delivered at:

Sydney

Delivered on:

14 December 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms S Burnett of Clayton Utz

ORDERS

The application filed on 17 July 2017 is dismissed.
The first and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2227 of 2017

DEF17

First Applicant

DEG17

Second Applicant

DEI17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 5 June 2017.
The first applicant (applicant) and her partner are citizens of China. The applicant arrived in Australia on a student visa in November 2007. She was issued with a Chinese passport in Sydney in June 2011 which replaced a previous passport issued to the applicant in 2006.[1]
[1] Court Book (CB) 3 and 11.
On 21 December 2012, the applicant and third applicant made applications for protection visas. Only the applicant made claims.[2] The third applicant, her de facto partner (partner applicant) made claims for protection as a member of the applicant's family.[3] The second applicant, the applicant's child (infant applicant) made claims as a member of the applicant's family by her protection visa application lodged with the Minister’s Department on 7 June 2013.[4]
[2] CB…

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 3741
Decision Date: 14 December 2018

CaseChat Overview and Summary

The applicant, DEF17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of protection visas. The applicants, who claimed to fear harm in China, had their claims assessed by the Tribunal. The principal applicant was disbelieved in certain respects, and other claimed fears were found not to be well-founded.

The central legal issues before the court were whether the Tribunal had breached section 424AA of the *Migration Act 1958* (Cth) and whether the hearing conducted by the Tribunal was unfair due to alleged interpretation errors. The court was required to determine if these alleged breaches constituted jurisdictional error.

Judge Driver found no jurisdictional error. The court reasoned that the Tribunal's findings of fact, including the discrediting of the principal applicant in certain respects, were within its powers and did not amount to a legal error. Furthermore, the court concluded that any alleged interpretation errors did not render the hearing unfair to the extent that it constituted a jurisdictional error. The Tribunal's decision was therefore upheld.

Orders