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EZC18 v MHA

EZC18 v MHA

Case [2019] FCCA 464 1 March 2019

Judicial Review

Statutory Construction

Statutory Interpretation

Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

EZC18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 464

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal – applicant citizen of the United Kingdom resident in Australia for in excess of fifty years – application for protection visa on the basis of complementary protection obligations – applicant elderly person in poor health convicted of sexual offences involving minors – as a consequence applicant has failed character test – AAT accepted evidence that applicant had significant risk of suicide if returned to UK – statutory construction – has AAT correctly considered complementary protection criteria – is applicant at serious risk of suffering harm as a consequence of being arbitrarily deprived of his life – interpretation of the phrase – reference to context and other extraneous materials – no jurisdictional error established – AAT correct to hold arbitrary deprivation of life must emanate from a third party – AAT followed normal practices of statutory interpretation – harm must have a casual link to treaty obligations – AAT entitled to find applicant was not at risk of suffering serious harm as consequence of being arbitrarily deprived of life – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss: 5H; 5J; 36; 65; 198(6); 474; 501(3A)

Migration Regulations 1994 (Cth): Schedule 2

Applicant:

EZC18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 386 of 2018

Judgment of:

Judge Brown

Hearing date:

14 December 2018

Date of Last Submission:

14 December 2018

Delivered at:

Adelaide

Delivered on:

1 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Finlayson

Solicitors for the Applicant:

Diaspora Legal

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for review filed 13 September 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,728.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 386 of 2018

EZC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a British citizen. He was born in Cumnock, Scotland on 24 January 1932. He migrated to…

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 EZC18 v MHA

Details

AGLC: EZC18 v MHA [2019] FCCA 464
Case: [2019] FCCA 464
Decision Date: 1 March 2019

CaseChat Overview and Summary

The applicant, a citizen of the United Kingdom who had resided in Australia for over fifty years, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant had applied for a protection visa on the grounds of complementary protection obligations, but had failed the character test due to convictions for sexual offences involving minors. The AAT had accepted evidence that the applicant faced a significant risk of suicide if returned to the United Kingdom.

The central legal issues before the court were whether the AAT had correctly considered the criteria for complementary protection, specifically whether the applicant was at a serious risk of suffering harm as a consequence of being arbitrarily deprived of his life. This required an interpretation of the phrase "arbitrarily deprived of his life" within the relevant statutory framework.

Judge Brown held that the AAT had correctly applied the principles of statutory interpretation. The court reasoned that the phrase "arbitrarily deprived of his life" in the context of complementary protection obligations must emanate from a third party, and not from the applicant's own actions or the consequences of their criminal conduct. The AAT was entitled to find that the applicant was not at risk of suffering serious harm as a consequence of being arbitrarily deprived of his life, as any such risk would not have a causal link to Australia's treaty obligations in the manner contemplated by the legislation. No jurisdictional error was established.

The application for judicial review was dismissed.

Orders