EYI17 v Minister for Immigration and Multicultural Affairs

Case [2024] FedCFamC2G 1320

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EYI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1320

File number(s): SYG 3449 of 2017
Judgment of: JUDGE GIVEN
Date of judgment: 2 December 2024
Catchwords: MIGRATION – Whether Tribunal properly considered evidence of applicant’s cousin in related reviews – whether Tribunal failed to put information to applicant from cousin for comment pursuant to s 424A
Legislation: Migration Act 1958 (Cth) ss 46A, 65
Cases cited:

Anderson v Director-General of the Dept of Environmental and Climate Change (2008) 251 ALR 633

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291

Minister for Home Affairs v Omar (2019) 272 FCR 589

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426

MZXBM v Minister for Immigration and Citizenship & Anor 162 FCR 454

NBKT v Minister for Immigration and Multicultural Affairs & Anor 156 FCR 419

SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZBYR v Minister for Immigration and Citizenship (2007) 127 CLR 297

VAAD v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: General Federal Law
Number of paragraphs: 71
Date of last submission/s: 2 October 2024
Date of hearing: 27 March 2024
Place:  Sydney
Counsel for the Applicant (until conclusion of hearing): Mr Richard Chia, on a direct access basis
Counsel for the Respondents:  Ms Rachel Francois
Solicitor for the Respondents:  Australian Government Solicitor

ORDERS

SYG 3449 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EYI17

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

2 DECEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application filed on 17 October 2017, as amended, is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

  1. Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 October 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Protection (Class XA) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act

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EYI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1320
Case
[2024] FedCFamC2G 1320
Decision Date

CaseChat Overview and Summary

The case of EYI17 v Minister for Immigration and Multicultural Affairs involved the applicant challenging the Tribunal's decision to refuse his protection visa application. The applicant's cousin was also involved in related reviews. The matter was determined by the Administrative Appeals Tribunal (AAT). The primary legal issue the AAT needed to decide was whether the Tribunal properly considered the evidence of the applicant's cousin in the related reviews and whether the Tribunal failed to provide the applicant with an opportunity to comment on the cousin's evidence as required by section 424A of the Migration Act.

The AAT found that the Tribunal member, who conducted the hearings for both the applicant and the cousin, recognised that the applicant wished for the Tribunal to consider evidence from the cousin's case. The Tribunal indicated it would consider all evidence in both cases together and planned to invite the applicant to provide a written response to matters of concern. However, the AAT held that the Tribunal did not adequately put the cousin's information to the applicant for comment, as required by section 424A. This was a procedural error which led to a failure of natural justice.

In its decision, the AAT quashed the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The AAT held that the Tribunal's failure to properly consider the cousin's evidence and provide the applicant with an opportunity to comment on it was a significant procedural error that undermined the fairness of the review process. The AAT did not make any findings on the merits of the visa application, and the matter was remitted for the Tribunal to reconsider the application in light of its findings on procedural fairness.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The reviews for each of the applicant and his Cousin were constituted by the same Tribunal member.First Tribunal decision On 5 February 2013, the Tribunal member conducted a hearing in relation to only the Cousin’s review. However, the Cousin had requested that the Tribunal take evidence from the applicant in his review. Accordingly, the Tribunal adjourned the hearing to 20 February 2013 so that each of the applicant and the Cousin could give evidence in the other’s review.[3][3] First Affidavit at page 16 lines 25 to 34. On 20 February 2013, the Tribunal conducted hearings in relation to the applicant and the Cousin. In the morning, the Tribunal conducted a hearing in relation to the Cousin’s review and, in the afternoon, conducted a hearing in relation to the applicant’s review. The Tribunal recognised that the applicant wanted it to consider evidence from the Cousin’s case and indicated that it would consider all of the evidence in the two cases together. The Tribunal also indicated that, after the hearing and having considered the evidence in both cases, it would write to the applicant and invite him to provide a written response to matters of concern. On 17 February 2014, the applicant’s migration agent wrote to the Tribunal, noting the member’s foreshadowing of an invitation to comment. The migration agent sought an indication as to when the Tribunal would be issuing said invitation or, alternatively, when the Tribunal would be making its decision (CB 151). On 6 February 2015, the Tribunal wrote to the applicant’s migration agent, notifying him that the Tribunal member had become unavailable and that another member would “finish the review” (CB 153). The same member was also to undertake the Cousin’s review. On 6 March 2015, the newly reconstituted Tribunal conducted further hearings in each of the reviews of the applicant and his Cousin. The Tribunal conducted a hearing in the Cousin’s review in the morning and a hearing in the applicant’s review in the afternoon. On 27 October 2015, the newly reconstituted Tribunal affirmed the delegate’s decision to refuse the applicant the visa (CB 193). By its written reasons, the Tribunal summarised the applicant’s claims and evidence from the statement provided in support of his protection visa application, and in the oral evidence given at the hearing on 20 February 2013 and 6 March 2015 (CB 194 at [1]). The Tribunal also referred to the evidence given by the applicant in the interview with the delegate on 26 July 2012. The Tribunal’s reasons focused primarily on what it found to be inconsistencies in the applicant’s own evidence. The Tribunal found that the applicant’s evidence to the delegate, that in 2005 the family had gone to court to be given “temporary freedom papers” secured against the title deeds to a shop owned relatives, was inconsistent with his evidence to the Tribunal on 20 February 2013 and 6 March 2015 that they did not go before a court before crossing the border.

Ratio Decidendi

Legal Principle Established

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