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EJC18 v MICMSMA

EJC18 v MICMSMA

Case [2020] FCCA 3171 27 November 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

EJC18 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3171

Catchwords:
MIGRATION – Protection (class XA) visa – section 36(2)(aa) of the Migration Act 1958 (Cth) – interpretation of necessary and foreseeable consequence – whether harm arising from choosing to enforce legal land rights is a necessary and foreseeable consequence of being returned to country of citizenship – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36

International Covenant on Civil and Political Rights (1996)

Explanatory Memorandum to the Migration Amendment (Complimentary Protection) Bill 2011 (Cth)

Cases cited:

ADL17 v Minister for Immigration & Anor [2020] FCCA 148

BPX17 v Minister for Immigration and Border Protection [2018] FCA 763

CRI026 v Republic of Nauru (2018) 92 ALJR 529

EJB18 v Minister for Immigration & Anor [2020] FCCA 3170
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

First Applicant:

EJC18

Second Applicant:

EJD18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2561 of 2018

Judgment of:

Judge Mercuri

Hearing date:

15 July 2020

Date of Last Submission:

15 July 2020

Delivered at:

Melbourne

Delivered on:

27 November 2020

REPRESENTATION

Counsel for the applicants:

Mr Aleksov

Solicitors for the applicants:

Carina Ford Immigration Lawyers

Counsel for the respondents:

Mr Kaplan

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicants’ application filed on 24 August 2018 and as amended on 24 June 2020 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2561 of 2018

EJC18

First Applicant

EJD18

Second Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter, together with EJB18 v Minister for Immigration & Anor [2020] FCCA 3170 (“EJB18”), involves members of the same family unit. Their claims have been dealt with as two separate proceedings before the delegate of the first respondent (“the delegate”), the Administrative Appeals Tribunal (“the Tribunal”) and this court.
Although separate decisions were handed down by the Tribunal in respect of each proceeding, the claims were essentially the same and arose from the same substratum of facts. Moreover, the Tribunal’s decision was based on the same analysis of the applicable provisions of the Migration Act 1958 (Cth) (“the Act”).
Similarly, the applications for judicial review in this proceeding and in EJB18 raise the same grounds of review and give rise to the same questions of law. I say this by way of background to explain the similarities in the reasons given…

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.

Continue reading EJC18 v MICMSMA

Details

AGLC: EJC18 v Minister for Immigration [2020] FCCA 3171
Case: [2020] FCCA 3171
Decision Date: 27 November 2020

CaseChat Overview and Summary

The applicants, EJC18 and MICMSMA, sought judicial review of a decision concerning their application for a Protection (class XA) visa. The dispute centred on whether harm arising from the enforcement of legal land rights in their country of citizenship constituted a "necessary and foreseeable consequence" of their return, as contemplated by section 36(2)(aa) of the *Migration Act 1958* (Cth). The matter was heard by Judge Mercuri in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was the interpretation of the phrase "necessary and foreseeable consequence" within the context of section 36(2)(aa) of the *Migration Act*. Specifically, the court had to determine whether the potential harm the applicants might face due to the enforcement of their legal land rights in their home country was a consequence that was both necessary and foreseeable, thereby engaging the protection visa provisions.

Judge Mercuri reasoned that for harm to be a "necessary and foreseeable consequence," it must be more than merely possible or speculative. The court found that the applicants had not established that the enforcement of their legal land rights would inevitably lead to harm, nor that such harm was a reasonably foreseeable outcome of their return. The mere existence of legal rights and the possibility of their enforcement did not, in the court's view, satisfy the threshold required by the legislation. Consequently, the court concluded that the applicants had not demonstrated that they would suffer harm as a necessary and foreseeable consequence of being returned to their country of citizenship.

The applicants’ application was dismissed, and they were ordered to pay the first respondent’s costs, to be fixed.

Orders

Orders of the court

1. The applicants’ application filed on 24 August 2018 and as amended on 24 June 2020 be dismissed.

2. The applicants pay the first respondent’s costs in a sum to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

EJC18 v Minister for Immigration [2020] FCCA 3171

Most Recent Citation

CZT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 423

Cases Citing This Decision

2010566 (Refugee) [2025] ARTA 1587
Citation 1

…ltural Affairs [2025] FCA 97 DQU16 v Minister for Home Affairs [2021] HCA 10 DZW17 v MICMA [2023] FCAFC 177 EJC18 v MICMSMA [2020] FCCA 3171 Guo Wei Rong and Pan Run Juan v Minister of Immigration [1996] FCA 1263 Lo v MIEA (1995) 61 FCR 221 Magyari v MIMA (Federal Court of Australia, 22 May 1997) Velmurugu v MIEA […
2001850 (Refugee) [2024] AATA 4193
Citation 2 (Para 12)

…certain way on return that would put them in harms way.[18] [18] [2020] FCCA 3171 at [62]-[64]. 128. Here the applicant has no choice in her innate personal attributes or a reasonable ability to modify or avoid which are discussed below. An integer of innate factors affect her. 129. The applicant gave evidence tha…
2400014 (Refugee) [2024] AATA 4061
Citation 3 (Para 62)

…en above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal i…
1906747 (Refugee) [2024] AATA 4075
Citation 4 (Para 2)

…indings of Mercuri J in EJC18 & Anor v Minister for Immigration & Anor [2020] FCCA 3171 (27 November 2020) in which this member heard the case involving a Pakistani man fearing harm arising from a choice he claimed he will make if he were to return to Pakistan, namely, to pursue through the courts a land claim. Mer…
1807284 (Refugee) [2023] AATA 4742
Citation 5 (Para 24)

…of removal as required by s 36(2)(aa) of the Act[8]. [8] EJC18 v MICMSMA [2020] FCCA 3171 The real risk contemplated by s 36(2)(aa) is ‘…a real risk that the non-citizen will suffer significant harm’. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A) of the Act. Section…
1803189 (Refugee) [2023] AATA 2432
Citation 6 (Para 20)

…In this case, I reference the findings of Mercuri J in EJC18 & Anor v Minister for Immigration & Anor [2020] FCCA 3171 (27 November 2020) in which this member heard the case involving a Pakistani man fearing harm arising from a choice he claimed he will make if he were to return to Pakistan, namely, to pursue throu…
CZT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 423
Citation 7 (Para 11)

…considered by Judge Mercuri (as her Honour then was) in EJC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3171 ( EJC18 ). Neither party referred to this judgment in their submissions. In EJC18 , the applicant claimed to fear harm as a result of his intention to pu…
1834018 (Refugee) [2022] AATA 1276
Citation 8 (Para 1)

…[2020] FCCA 3171, the court found that the Tribunal did not err in concluding that the applicants made the choice to pursue a property claim on their return to Pakistan. Findings on complementary protection 113. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and…
2103931 (Refugee) [2021] AATA 3247
Citation 9 (Para 13)

…teria 100. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk of significant harm. CONCLUDING PARAGRAPHS 101. For the reasons given above, the Tribunal is not sa…
EJB18 v Minister for Immigration and Anor [2020] FCCA 3170
Citation 10 (Para 1)

…These reasons are to be read in conjunction with the reasons for judgment delivered today in EJC18 & Anor v Minister for Immigration & Anor [2020] FCCA 3171 (“ EJC18 ”).…

See all citing cases →

Cases Cited

EJB18 v Minister for Immigration and Anor [2020] FCCA 3170
Citation 1 (Para 1)

…This matter, together with EJB18 v Minister for Immigration & Anor [2020] FCCA 3170 ( “EJB18” ), involves members of the same family unit. Their claims have been dealt with as two separate proceedings before the delegate of the first respondent (“the delegate”), the Administrative Appeals Tribunal (“the Tribunal”)…
ADL17 v Minister for Immigration [2020] FCCA 148
Citation 2 (Para 20)

…The issue was directly considered in ADL17 v Minister for Immigration & Anor [2020] FCCA 148 ( “ADL17” ). In ADL17 , Judge Kelly also referred to Gageler J’s comments in SZSCA and aptly identified the rationale behind the principles in S395/2002 as follows: The rationale for those principles is that the concealmen…
BPX17 v Minister for Immigration and Border Protection [2018] FCA 763
Citation 3 (Para 11)

…o the decisions in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and BPX17 v Minister for Immigration and Border Protection [2018] FCA 763.[23] It then concluded that ‘ the applicant’s removal from Australia does not lead to a real risk of significant harm and as such does not meet s. 36…
CRI026 v The Republic of Nauru [2018] HCA 19
Citation 4 (Para 12)

…However, counsel noted the High Court’s decision in CRI026 v Republic of Nauru (2018) 92 ALJR 529 ( “CRI026” ). It was submitted that the issue before the High Court in that case related to whether there was a reasonable relocation limitation under the applicable international law treaties, in particular, the Interna…
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Citation 5 (Para 11)

…The Tribunal referred to the decisions in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and BPX17 v Minister for Immigration and Border Protection [2018] FCA 763.[23] It then concluded that ‘ the applicant’s removal from Australia does not lead to a real risk of significant harm and as suc…
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
Citation 6 (Para 19)

…In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 ( “SZSCA” ), Gageler J relevantly summarised the principle arising from S395/2002 as follows: [36] The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-…
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Citation 7 (Para 13)

…Similarly, it was submitted that the case of Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 ( “Anochie” ) also concerned Australia’s non-refoulement obligations under the ICCPR , and in particular, whether these obligations limited the Minister’s right to cancel Mr Anochie’s visa and deport him…
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Citation 8 (Para 17)

…It was common ground between the parties that Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ( “S395/2002” ) does not apply to section 36(1)(aa) of the Act. The applicants’ position was somewhat more nuanced in so far as they said that it does not apply ‘directly’ .…
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Citation 9 (Para 8)

…to proceed on the basis that it did have the claimed connection.[57] It was therefore submitted that, in failing to engage with the principle in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 ( “the Rajalingam principle” ), the Tribunal was led into error. [56] Court book page 893. [57] Minister for Immigration and Multicultural Aff…
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Citation 10 (Para 19)

…As noted by the majority in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559: Conjecture or surmise has no part to play in determining whether a fear is well-founded. … a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will…

Legislation Cited

Migration Act 1958 (Cth) 36, 5J
3 mentions (from Para 2)