Eej16 v Minister for Immigration - [2019] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEJ16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3359

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection Visas – where the Tribunal assessed the Applicants’ claims against the complementary protection provisions – consideration of section 48A of the Migration Act 1958 and SGZIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 – whether the Tribunal fell into jurisdictional error in assessing the Second Applicant’s claims – consideration of a Certificate and a Notification issued pursuant to section 438 of the Act – no jurisdictional error established – Application dismissed.

Legislation:

Australian Citizenship Act 2007, s.12(1)(b)

Migration Act 1958, ss.29, 36(1), 36(2), 36(2)(a), 36(2)(aa), 48A, 65, 438

Cases cited:

AMA15 v Minister for Immigration and Border Protection (2015) 244 FCR 131

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487

First Applicant:	EEJ16
Second Applicant:	EEK16

Third Applicant:

EEL16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2840 of 2016

Judgment of:

Judge Blake

Hearing date:

4 and 13 September 2019

Date of Last Submission:

13 September 2019

Delivered at:

Melbourne

Delivered on:

21 November 2019

REPRESENTATION

Advocate for the Applicants:

The First Applicant on behalf of the Applicants

Solicitors for the Applicants:

None

Advocate for the Respondents:

Ms Jackson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed on 30 December 2016 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2840 of 2016

EEJ16

First Applicant

And

EEK16

Second Applicant

And

EEL16

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 6 December 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants Protection Visas (‘the Visas’) pursuant to section 65 of the Migration Act 1965 (‘Act’).
For the reasons that follow, I have decided to dismiss the Application for review.

Background

The Applicants are Malaysian nationals. The First and Second Applicant arrived in Australia on 18 January 2008. The Third Applicant was born in Australia on 10 February 2009.
The Applicants applied for the Visas on 5 March 2008 (‘the first applications’). These applications were refused by a delegate of the Minister on 10 April 2008. This decision was affirmed by the then Refugee Review Tribunal (‘RRT’) on 15 July 2008. The First Applicant filed an application to show cause in the High Court for judicial review of the RRT’s decision on 31 July 2013.…

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 3359
Decision Date: 21 November 2019

CaseChat Overview and Summary

The applicant, Eej16, sought judicial review of a decision made by the Administrative Appeals Tribunal concerning protection visa applications. The Minister for Immigration was the respondent. The dispute centred on the Tribunal's assessment of the applicants' claims under the complementary protection provisions of the Migration Act 1958. The matter was heard by Judge Blake in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had committed jurisdictional error in its assessment of the Second Applicant’s claims. This involved considering the application of section 48A of the Migration Act 1958 and the principles established in *SGZIZ v Minister for Immigration and Citizenship* (2013) 212 FCR 235. The Court also considered the effect of a Certificate and a Notification issued pursuant to section 438 of the Act.

Judge Blake found that the Tribunal had not fallen into jurisdictional error. The Court's reasoning, informed by the case law and the relevant legislative provisions, concluded that the Tribunal's assessment of the Second Applicant's claims was within its jurisdiction. The existence and effect of the section 438 Certificate and Notification were considered and found not to vitiate the Tribunal's decision.

Consequently, the application for judicial review was dismissed.

Orders