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 |
| Cases cited: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR27 SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936 MZAAJ v Minister for Immigration & Border Protection [2015] FCCA 151 MZAAJ v Minister for Immigration & Border Protection [2015] FCA 478 Appellant S395/2002 v Minister for Immigration & Border Protection (2003) 216 CLR 473 Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2004) 126 FCR 54 PJB v Melbourne Health [2011] VSC 327 [80]-[83] |
| 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…
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- AGLC
- EZC18 v MHA [2019] FCCA 464
- Case
- [2019] FCCA 464
- Decision Date
CaseChat Overview and Summary
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
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
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Ratio Decidendi
Legal Principle Established
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