AFD16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: PERRY J
• Judgment Date: 10 July 2020
• Neutral Citation: [2020] FCA 964
• Date: 10 July 2020

FEDERAL COURT OF AUSTRALIA

AFD16 v Minister for Immigration and Border Protection [2020] FCA 964

Appeal from:	AFD16 & Anor v Minister for Immigration & Anor [2016] FCCA 2810
File number:	NSD 2129 of 2016
Judge:	PERRY J
Date of judgment:	10 July 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court (FCC) dismissing application for judicial review of decision by Administrative Appeals Tribunal (AAT) affirming decision not to grant the appellant family protection visas – where father and mother claimed among other things to fear that their extended family would subject their minor daughters to female genital mutilation if returned to Egypt – where psychiatric evidence that father suffered from serious mental illness pointed to significant and relevant disadvantages attending the giving of his evidence – where AAT failed comprehensively to engage in a meaningful consideration of the psychiatric evidence in making adverse credibility findings including deliberate dishonesty, despite ostensibly accepting the medical opinion – where AAT accepted psychiatric diagnosis but not symptoms underpinning diagnosis applying SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262 – where error in assessment of credibility material to AAT decision – consideration of principles governing judicial review of credibility findings by administrative decision-maker – appeal allowed ; MIGRATION – where finding that father would be able to return to work in Egypt in reasonably foreseeable future had no probative foundation in the psychiatric evidence and was illogical – where finding failed genuinely to consider the human consequences of returning the family to Egypt by honestly confronting what that would mean, having regard to the psychiatric evidence – where error not material ; MIGRATION – whether AAT failed to afford appellants a real opportunity to give evidence and make submissions contrary to s 425, Migration Act – where, despite concerns about fairness of the hearing, the evidence did not establish that the father was entirely unfit to attend the AAT hearing applying BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116 – whether AAT’s conduct in restricting the appellants’ representatives’ participation in the hearing constituted jurisdictional error – whether the AAT failed to apply the “real chance” test and consider the possibility that its finding that there was no real risk to the daughters of genital mutilation in Egypt might be wrong - whether FCC denied appellants natural justice
Legislation:	Migration Act 1958 (Cth) ss 36(2), 91R, 91S, 425, 427(6) Federal Court Rules 2011
Cases cited:	ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 DQM18 v Minister for Home Affairs [2020] FCAFC 110 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 Minister for Immigration and Border Protection v BBS16 [2007 FCAFC 176; (2017) 257 FCR 111 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 322 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983; (2003) 76 ALD 56 Nguyen v Minister for Home Affairs [2019] FCAFC 128 Re Minister for Immigration and Multicultural Affairs; Ex Parte Cassim [2000] HCA 50; (2000) 74 ALJR 1404 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 SZQUM v Minister for Immigration and Citizenship [2012] FCA 493 SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; (2002) 67 ALD 757 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271
Date of hearing:	16 March 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	126
Counsel for the Appellants:	Ms E Grotte
Solicitor for the Appellants:	McArdle Legal
Counsel for the First Respondent:	Mr P Knowles
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	the Second Respondent filed a submitting notice

ORDERS

		NSD 2129 of 2016
BETWEEN:	AFD16 First Appellant ; AFE16 Second Appellant ; AFH16 (and others named in the Schedule) Third Appellant
AND:	MINISTER FOR...