GWH24 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 318

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GWH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 318

File number: MLG 3040 of 2024

Judgment of: JUDGE BLAKE

Date of judgment: 11 March 2025

Catchwords: MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) misconstrued section 36(2)(aa) and section 36(2B)(b) of the Migration Act 1958 (Cth) – whether Tribunal wrongly treated section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147 – whether Tribunal erred by focusing on a system of protection rather than the ability of the individual to avail himself of protection – no error established – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss 5J(2), 5L, 5LA(1), 5LA(2), 36, 36(2)(a), 36(2)(aa), 36(2B), 36(2B), 189.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2.

Cases cited:
ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721

AMO18 v Minister for Home Affairs [2020] FCA 1403

CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199

Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147

Division: Division 2 General Federal Law

Number of paragraphs: 68

Date of hearing: 28 January 2025

Place: Melbourne

Counsel for the Applicant: Dr McBeth

Solicitor for the Applicant: Bardo Zouki Noureddine Lawyers

Advocate for the Respondent: Mr Brown

Solicitor for the Respondent: Australian Government Solicitor
ORDERS

MLG3040 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GWH24

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

11 MARCH 2025

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application filed 9 September 2024, as amended 30 December 2024, be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding, fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:

This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 19 August 2024. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Temporary Protection (subclass 785) visa (‘visa’) (Court Book (‘CB’) 298).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is…

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 GWH24 v Minister for Immigration and Multicultural Affairs

Details

AGLC: GWH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 318
Case: [2025] FedCFamC2G 318
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the Federal Circuit Court, GWH24, an Albanian national, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that upheld the Minister for Immigration and Multicultural Affairs' refusal to grant him a protection visa. GWH24 arrived in Australia on a visitor visa but was detained under the Migration Act 1958 (Cth) after his visa was refused. He applied to the Tribunal for review of the delegate's decision, which was subsequently affirmed. He then sought judicial review of the Tribunal's decision, arguing that the Tribunal misconstrued sections 36(2)(aa) and 36(2B)(b) of the Act. GWH24 contended that the Tribunal wrongly treated section 36(2B)(b) as a 'carve out' from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147. He also claimed that the Tribunal erred by focusing on a system of protection rather than his ability to avail himself of protection from the specific risk of harm he faced.

The court was required to determine whether the Tribunal misconstrued the relevant sections of the Act. Specifically, the court had to examine whether the Tribunal treated section 36(2B)(b) as a 'carve out' from section 36(2)(aa), and whether it erred by focusing on the existence of a system of protection rather than GWH24's ability to avail himself of protection. The court considered the principles in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147, which held that section 36(2B)(b) should not be treated as a 'carve out' from section 36(2)(aa). The court also had to determine whether the Tribunal erred by focusing on the existence of a system of protection rather than GWH24's ability to avail himself of protection. The court examined the Tribunal's reasoning and found that it had not erred in its construction of the relevant sections of the Act. The court found that the Tribunal had considered the relevant factors and had not misconstrued the Act.

The court found that the Tribunal had not constructively failed to consider whether there were effective protection measures, by accepting that a different level of risk applied to Northern Albania compared to the rest of the country yet failing to consider what that differential risk meant for the Applicant's individual circumstances. The court found that the Tribunal had considered the relevant factors and had not misconstrued the Act. The court also found that the Tribunal had not erred by treating section 36(2B)(b) as a 'carve out' from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147. The court found that the Tribunal had not erred by focusing on the existence of a system of protection rather than GWH24's ability to avail himself of protection. The court found that the Tribunal had considered the relevant factors and had not misconstrued the Act.

The only appropriate order is that the Application be dismissed. The court dismissed the application for review and ordered that the Applicant pay the Minister's costs in the amount of $8,371.30. The Applicant has been entirely unsuccessful in his application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I have decided to dismiss the application for review.BACKGROUND The Applicant is an Albanian national. He arrived in Australia on 27 April 2024 on a visitor visa, and was subsequently detained under section 189 of the Migration Act 1958 (Cth) (‘the Act’) (CB 301). He had previously entered and exited Australia on other visas, including by using other identities to obtain those visas. He applied for the visa on 30 April 2024 (CB 13). On 16 May 2024, the Applicant attended a Protection Visa interview (‘PV interview’) (CB 180). On 30 May 2024, the delegate refused to grant the Applicant the visa (CB 172). On 6 June 2024, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 196). On 24 June 2024, the Applicant was invited to appear before the Tribunal on 18 July 2024 (CB 202). On 18 July 2024, a hearing was held at the Tribunal. On 19 August 2024, the Tribunal affirmed the decision not to grant the Applicant the visa (CB 298). The Applicant filed the application to review the decision of the Tribunal in this Court on 9 September 2024. The application was accompanied by a supporting affidavit of his solicitor. On 30 December 2024, the Applicant filed an amended application to review the decision of the Tribunal (‘Application’). At the Hearing before me, the Applicant (who was represented) relied on the Application and his written outline of submissions filed 24 December 2024. The Minister relied on written submissions filed 15 January 2025. The Minister also filed a Court Book in the proceeding. THE APPLICATION The Application contains a single Ground of Review. It is reproduced below:1.The Tribunal constructively failed to consider whether there were effective protection measures, by accepting that a different level of risk applied to Northern Albania compared to the rest of the country yet failing to consider what that differential risk meant for the Applicant's individual circumstances, as a person who would return to Northern Albania. 1. The Tribunal erred in its construction of s 36(2B) of the Migration Act 1958.Particulars(a)The Tribunal erred by treating s 36(2B)(b) as a "carve-out" to be considered after the enquiry provided for in s 36(2)(aa).(b)The Tribunal erred by focusing on the existence of a system of protection rather than the ability of the individual applicant to avail himself of protection from the specific risk of harm he faced.THE LEGISLATION It is appropriate to start with the words of the Act. Section 36(2)(aa) of the Act forms part of the Complementary Protection Regime. It provides as follows:(2) A criterion for a protection visa is that the applicant for the visa is:…(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The only appropriate order is that the Application be dismissed. CONCLUSION The Applicant has been entirely unsuccessful. The Minister seeks costs in accordance with the scale set out in schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in the amount of $8,371.30. I will make an order for costs in the sum sought by the Minister of $8,371.30.

Ratio Decidendi

Legal Principle Established

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File number:	MLG 3040 of 2024
Judgment of:	JUDGE BLAKE
Date of judgment:	11 March 2025
Catchwords:	MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) misconstrued section 36(2)(aa) and section 36(2B)(b) of the Migration Act 1958 (Cth) – whether Tribunal wrongly treated section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147 – whether Tribunal erred by focusing on a system of protection rather than the ability of the individual to avail himself of protection – no error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5J(2), 5L, 5LA(1), 5LA(2), 36, 36(2)(a), 36(2)(aa), 36(2B), 36(2B), 189. Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2.
Cases cited:	ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 AMO18 v Minister for Home Affairs [2020] FCA 1403 CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 Minister for Immigration and Citizenship vMZYYL [2012] FCAFC 147
Division:	Division 2 General Federal Law
Number of paragraphs:	68
Date of hearing:	28 January 2025
Place:	Melbourne
Counsel for the Applicant:	Dr McBeth
Solicitor for the Applicant:	Bardo Zouki Noureddine Lawyers
Advocate for the Respondent:	Mr Brown
Solicitor for the Respondent:	Australian Government Solicitor

MLG3040 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GWH24 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	11 MARCH 2025