Manua v Minister for Immigration - [2018] FCCA 990

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANUA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 990

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – student visa – citizens of the Philippines – whether evidence of funds – whether merits review – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Pt.5, ss.474, 476

Migration Regulations 1994 (Cth), reg.1.40, Sch.2, cll.572.111, 572.223, Sch.5A, Pt.4, cll.5A101, 5A408

Cases cited:

BCE15 v Minister for Immigration & Border Protection [2015] FCA 293
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
Wei v Minister for Immigration & Border Protection [2015] HCA 51, (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226

First Applicant:

MAYCHELLE MANUA

Second Applicant:

RHUMSKY MANUA

Third Applicant:

YAMUHR DIVO ANDREI MANUA

Fourth Applicant:

REESE SANUELLE ANDI MANUA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 618 of 2016

Judgment of:

Judge Lucev

Hearing date:

19 April 2018

Date of Last Submission:

19 April 2018

Delivered at:

Perth

Delivered on:

26 April 2018

REPRESENTATION

For the First Applicant:

In person

For the Second Applicant:

In person

Third Applicant:

No appearance

Fourth Applicant:

No appearance

Counsel for the First Respondent:

Ms E Tattersall

For the Second Respondent:

Submitting appearance save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 618 of 2016

MAYCHELLE MANUA

First Applicant

RHUMSKY MANUA

Second Applicant

YAMUHR DIVO ANDREI MANUA

Third Applicant

REESE SANUELLE ANDI MANUA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants have sought judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 17 November 2016. The Tribunal…

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: [2018] FCCA 990
Decision Date: 26 April 2018

CaseChat Overview and Summary

Manua sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a protection visa. The applicant, Mr Manua, was a citizen of Samoa. The Minister's delegate had refused the protection visa application on the basis that the applicant had not established that he would be prejudiced if returned to Samoa, and that he had not established that he would be subjected to persecution or serious harm. The Administrative Appeals Tribunal (AAT) affirmed the delegate's decision. Mr Manua then sought review of the AAT's decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to determine whether the AAT had failed to adequately consider the evidence presented by Mr Manua regarding the risks he faced upon return to Samoa, and whether the AAT had applied the correct legal principles in assessing the likelihood of persecution or serious harm. The Court also considered whether the AAT had properly applied the non-refoulement obligations under international law.

Judge Lucev found that the AAT had made a jurisdictional error. The Court held that the AAT had failed to properly engage with the evidence concerning the applicant's specific circumstances and the potential risks he faced. The AAT's reasoning was found to be deficient in its assessment of the subjective and objective elements of the protection claims. The Court emphasised that the AAT must conduct a thorough and holistic assessment of all relevant evidence, and that a failure to do so constitutes an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders