EFG18 v Minister for Immigration - [2020] FCCA 430

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFG18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 430

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Lebanon – applicant disbelieved in critical respects – whether the Tribunal decision is vitiated by unreasonable fact finding considered – error made not material hence not going to jurisdiction.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593
Dilatte v MacTiernan [2002] WASCA 100
DNQ17 v Minister for Immigration [2018] FCA 1781
DZT18 v Minister for Home Affairs [2019] FCA 1639
Minister for Immigration v SZMTA (2019) 264 CLR 421
Minister for Immigration v Yusuf (2001) 206 CLR 323

Applicant:

EFG18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2269 of 2018

Judgment of:

Judge Driver

Hearing date:

27 February 2020

Delivered at:

Sydney

Delivered on:

26 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Immi House Legal

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application as amended by leave granted on 27 February 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2269 of 2018

EFG18

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 applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Lebanon who last arrived in Australia on 28 September 2013 as the holder of a tourist (subclass 676) visa.[1]
[1] Court Book (CB) 66
On 1 November 2013, the applicant made an application for a protection visa.[2] In that application, the applicant relevantly made the following claims:[3]
[2] CB 2–35
[3] CB 21-23; errors in original
43. Why did you leave that country?
I left Lebanon due to the ongoing threats and harassment by the Lebanese intelligence. The Lebanese intelligence have also been monitoring me and harassing me on a count of my son … who is still wanted by them.
I am a elderly woman of extremely frail health and cannot withstand the level of harassment and mistreatment that I have been subjected to on account of my son being wanted by the Lebanese intelligence.
44. Have you experienced harm in that country?
I have been subjected to an ongoing episode of mistreatment at the hands of the Lebanese intelligence including; harassment, monitoring, extensive interrogation, physical mistreatment and threats of further physical mistreatment if I do no cooperate with the Lebanese intelligence.
45. What do you fear may happen to you if you go…

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 430
Decision Date: 26 March 2020

CaseChat Overview and Summary

The applicant, EFG18, sought judicial review of a decision by the Minister for Immigration to refuse a protection visa. The Administrative Appeals Tribunal (AAT) had previously affirmed this refusal, finding that the applicant's claims of a fear of harm in Lebanon were not credible in critical respects. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT's decision was vitiated by unreasonable fact-finding, and if so, whether this unreasonableness constituted a material error that would affect the jurisdiction of the Tribunal. The applicant contended that the Tribunal's disbelief of certain aspects of their evidence was so unreasonable as to amount to an error of law.

Judge Driver considered the principles of reasonableness in administrative decision-making, particularly in the context of the Migration Act 1958 (Cth). The Court found that while the Tribunal's findings might have been open to criticism, they did not reach the threshold of unreasonableness that would invalidate the decision. Crucially, even if an error was identified in the fact-finding process, it was not considered material to the ultimate outcome of the case, meaning it did not affect the jurisdiction of the Tribunal to make its decision.

Consequently, the application for judicial review was dismissed.

Orders