Emc18 BY His Litigation Guardian Emd18 v Minister for Home Affairs

[2019] FCCA 616

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMC18 BY HIS LITIGATION GUARDIAN EMD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 616

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal misconstrued or misapplied s 5J(6) of the Migration Act 1958 (Cth) – amended application allowed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476, 477

Applicant: EMC18 BY HIS LITIGATION GUARDIAN EMD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2425 of 2018

Judgment of: Judge Street

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Sydney

Delivered on: 13 March 2019

REPRESENTATION

Counsel for the Applicant: Mr A Silva
Direct Access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. Time under s 477 of the Migration Act 1958 (Cth) is extended up to and including 30^th of August 2018.

2. The deponent of the affidavit dated 29 August 2018 filed on 30 August 2018 is appointed litigation guardian for his son, the applicant and the Court dispenses with the need for the filing of any affidavit under the Federal Circuit Court Rules 2001 (Cth).

3. A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made on 1 June 2018.

4. A writ in nature of mandamus is issued requiring the second respondent to determine the applicant’s application according to law.

5. The first respondent pay the applicant’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 13 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2425 of 2018

EMC18 BY HIS LITIGATION GUARDIAN EMD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 June 2018 affirming a decision of the delegate not to grant the applicant, who is a child, a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of Fiji and his claims were assessed against that country. The applicant’s father was appointed litigation guardian in the proceedings in this Court commenced on 30 August 2018. The Court extended time under s 477 of the Act in light of the submissions and amended application filed by Mr Silva of counsel on behalf of the applicant.

3. The Tribunal in the course of its reasons disregarded the conduct of the parents purportedly under s 5J(6) of the Act in paragraphs 38 and 39 of its reasons. That provision applied to the applicant and not the parents. The error is acknowledge by the Minister. The Minister contends, however, that the Tribunal’s reasons should be read as if the disregarding of that conduct did not occur on one reading of the Tribunal’s reasons. The Minister in that regard refers to what is said in paragraph 43 which does refer to involvement of the applicant’s parents in the conduct said to have been disregarded. However, the reasoning in paragraph 43 was clearly incorporated in the conclusion that the applicant did not meet the Refugees Convention under s 36(2)(a) of the Act. 

4. The Minister also sought to rely upon paragraph 46 as being effectively an independent finding under complementary protection in which the Tribunal is alleged to have taken into account the conduct of the parents said to have been disregarded in paragraph 39. The difficulty with that proposition is in paragraph 46 it refers to, “for reasons discussed at paragraphs 37-39 above.” In those circumstances, there has been a misconstruction of s 5J(6) of the Act, which in the present case the Court finds has had an operative impact in the determination of the applicant’s claims under the Refugees Convention and in respect of complementary protection.

5. The Court finds in the circumstances that this amounts to a jurisdictional error and accordingly, constitutes a jurisdictional error.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019