FOW17 v Minister for Immigration - [2019] FCCA 3155

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOW17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3155

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – protection visa – challenge to Tribunal’s finding that corroborative documents were not genuine – alleged failure to give proper, genuine or realistic consideration – legal unreasonableness – is decision vitiated by illogicality or irrationality – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 5J, 35A, 36(2), 65, 474, 476

Migration Regulations 1994 (Cth), Sch. 2

Cases cited:

ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109

BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94

Craig v South Australia (1995) 184 CLR 163

Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780

Islam v Cash (2015) 148 ALD 132

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR

259

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant

S20/2002 (2002) 77 ALJR 1165

SZLGP v Minister for Immigration & Citizenship (2009) FCR 113

SZVHP v Minister for Immigration & Border Protection [2016] FCA 270

First Applicant:

FOW17

Second Applicant:

FOX17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 527 of 2017

Judgment of:

Judge Brown

Hearing date:

6 June 2019

Date of Last Submission:

6 June 2019

Delivered at:

Adelaide

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr McDonald-Norman

Solicitors for the Applicant:

MSM Legal

Counsel for the Respondents:

Ms Grenfell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The First Respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for review be dismissed.
The Applicants pay the First Respondent’s costs in the amount of seven thousand four hundred and sixty seven dollars ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 527 of 2017

FOW17

First Applicant

FOX17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application seeking the judicial review of a decision of the Administrative Appeals Tribunal[1] not to grant the two applicants concerned protection visas pursuant to the provisions of the Migration Act 1958 (Cth).[2]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”
[2] Hereinafter referred to as “the Act”
The primary applicant is a 51 year old man, who was born in Albania. The secondary…

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.

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Details

Case: [2019] FCCA 3155
Decision Date: 8 November 2019

CaseChat Overview and Summary

The applicant, FOW17, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning an application for a protection visa. The central dispute revolved around the AAT's finding that certain corroborative documents submitted by the applicant were not genuine, which consequently impacted the assessment of the applicant's claims for protection. The matter was heard by Judge Brown in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the AAT had failed to give proper, genuine, or realistic consideration to the corroborative documents, and whether the Tribunal's decision was vitiated by legal unreasonableness, specifically through illogicality or irrationality. The applicant contended that these failures constituted jurisdictional error.

Judge Brown's reasoning focused on the standard of review applicable to the AAT's findings of fact and its assessment of evidence. The court examined whether the AAT's conclusion that the documents were not genuine was supported by its own findings and whether the process followed by the Tribunal was logically sound. The court applied principles of administrative law concerning the assessment of evidence and the avoidance of illogical or irrational decision-making. Ultimately, the court found no evidence of jurisdictional error in the AAT's decision-making process.

The application for judicial review was dismissed.

Orders