FZD18 v Minister for Immigration - [2020] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

FZD18 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1401

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicants Protection (Class XA) (Subclass 866) visas – Tribunal informed applicants it was unable to make favourable decision on the material and invited them to a hearing before it – applicants indicated they did not wish to attend the scheduled hearing before the Tribunal and requested that it make its decision on the available materials – no jurisdictional error identified by the applicants – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZIMG v Minister for Immigrationand Citizenship (2008) 167 FCR 362
SZRRW v Minister for Immigration and Citizenship [2013] FCA 332

First Applicant:

FZD18

Second Applicant:

FZE18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3202 of 2018

Judgment of:

Judge Dowdy

Hearing date:

3 March 2020

Delivered at:

Sydney

Delivered on:

3 March 2020

REPRESENTATION

The Applicants appeared
in person.

Counsel for the First Respondent:

Mr L. Leerdam

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 16 November 2018 is dismissed.
The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $4,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 30 June 2020 to file any Notice of appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3202 of 2018

FZD18

First Applicant

FZE18

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicants in this proceeding are as follows:
a)the First Applicant is a female citizen of China aged 30 years; and
b)the Second Applicant is a male citizen of China aged 31 years and is the husband of the First Applicant.
(collectively the Applicants)
By Application filed in this Court on 16 November 2018 they seek to quash and impliedly have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 October 2018 which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services…

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.

Keep reading for free

Create a free CaseChat account to read FZD18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1401
Decision Date: 3 March 2020

CaseChat Overview and Summary

The applicants sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Delegate of the Minister for Immigration's refusal to grant them Protection (Class XA) (Subclass 866) visas. The matter came before Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the AAT had committed a jurisdictional error in its decision-making process. Specifically, the applicants contended that the Tribunal erred in proceeding to make its decision without their attendance at a scheduled hearing, despite their indication that they did not wish to attend and preferred the Tribunal to decide based on the existing material.

Dowdy J found no jurisdictional error. The Court reasoned that the applicants, by explicitly informing the Tribunal of their desire not to attend the hearing and requesting a decision on the available materials, had effectively waived their right to a hearing. The Tribunal was therefore entitled to proceed on the basis of the material before it, as the applicants had not been denied an opportunity to be heard but had voluntarily foregone that opportunity. The Court applied the principle that a party cannot complain of an error which they themselves invited or consented to.

The application for judicial review was dismissed.

Orders