Dvi18 v Minister for Immigration - [2020] FCCA 2698

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVI18 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2698

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming a fear of harm in Pakistan – applicant not believed – whether the Tribunal actively engaged intellectually with the applicant’s evidence and submissions or whether the Tribunal made a finding that was irrational, illogical or unreasonable, without any probative foundation considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 501CA

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

AXT19 v Minister for Home Affairs [2020] FCAFC 32

BIL17 v Minister for Immigration [2019] FCAFC 6

Carrascalao v Minister for Immigration (2017) 252 FCR 352

DQM18 v Minister for Home Affairs [2020] FCAFC 110

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377

Minister for Home Affairs v Omar [2019] FCAFC 188

Muggeridge v Minister for Immigration (2017) 255 FCR 81

Nguyen v Minister for Immigration [2020] FCA 985

Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59

SZLGP v Minister for Immigration [2008] FCA 1198

Tickner v Chapman (1995) 57 FCR 451

Tran v Minister for Immigration [2019] FCAFC 126

WAIJ v Minister for Immigration (2004) 80 ALD 568

First Applicant:

DVI18

Second Applicant

DVJ18

Third Applicant:

DVK18

Fourth Applicant:

DVL18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2059 of 2018

Judgment of:

Judge Driver

Hearing dates:

27 July, 15 September 2020

Delivered at:

Sydney

Delivered on:

27 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms T Baw

Solicitors for the Applicant:

Craddock Murray Neumann

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Minter Ellison

ORDERS

The amended application filed on 4 September 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2059 of 2018

DVI18

First Applicant

DVJ18

Second Applicant

DVK18

Third Applicant

DVL18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicants seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 20 July 2020.
The first applicant (applicant) is the husband of the second applicant, and the third and fourth applicants are their minor children.
The applicant is a citizen of Pakistan. He came to Australia in March 2011 with the second and third applicants. They applied for protection visas on 5 February 2013. The fourth applicant was born in Australia in 2014 and was added to the application…

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: [2020] FCCA 2698
Decision Date: 27 October 2020

CaseChat Overview and Summary

The applicant, Dvi18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which refused to grant protection visas. The principal applicant claimed to fear harm in Pakistan, but the Tribunal had not believed their evidence. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue for determination was whether the AAT had actively engaged intellectually with the applicant’s evidence and submissions, or alternatively, whether the Tribunal had made a finding that was irrational, illogical, or unreasonable, lacking any probative foundation. The applicant contended that the Tribunal’s decision constituted jurisdictional error.

Judge Driver found that the Tribunal had adequately engaged with the applicant's evidence and submissions. The Tribunal's assessment of the applicant's credibility and the reasons for not accepting their claims were found to be within the bounds of reasonableness and supported by a probative foundation. Consequently, the court concluded that no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders