APE16 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 27 May 2020
• Neutral Citation: [2020] FCAFC 93
• Date: 27 May 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

APE16 v Minister for Home Affairs [2020] FCAFC 93

Appeal from:	APE16 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2094
File number:	VID 1113 of 2018
Judges:	KENNY, WHEELAHAN AND ANASTASSIOU JJ
Date of judgment:	27 May 2020
Catchwords:	MIGRATION – appeal from the Federal Circuit Court – whether the Tribunal erred by failing to make a finding as to the place where the appellant was likely to return – consideration of the concept of a “home area” and the internal relocation principle in applying s 36(2B)(a) of the Migration Act 1958 (Cth) – Tribunal failed to discharge its statutory function – appeal allowed.
Legislation:	Migration Act 1958 (Cth) ss 36, 48A, 65 and 424A Migration Amendment (Complementary Protection) Act 2011 (Cth)
Cases cited:	Boensch v Pascoe [2019] HCA 49; 375 ALR 15 CRI028 v Republic of Nauru [2018] HCA 24; 92 ALJR 568 CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; 260 FCR 134 FCS17 v Minister for Home Affairs [2020] FCAFC 68 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514 SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549
Date of hearing:	9 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Appellant:	Mr M Albert with Ms E Tadros
Solicitor for the Appellant:	Asylum Seeker Resource Centre
Counsel for the First Respondent:	Mr B Petrie
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting appearance.

ORDERS

		VID 1113 of 2018
BETWEEN:	APE16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	KENNY, WHEELAHAN AND ANASTASSIOU JJ
DATE OF ORDER:	27 May 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Paragraphs 2 and 3 of the order of the Federal Circuit Court of Australia made on 24 August 2018, by which the appellant’s application to that Court was dismissed with costs, be set aside, and in lieu thereof it be ordered that –

(a) a writ of certiorari issue to the Administrative Appeals Tribunal quashing its decision dated 13 November 2015, by which the refusal of the applicant’s application to the Minister for a protection visa was affirmed;

(b) a writ of mandamus issue directed to the Tribunal requiring it to determine the applicant’s application for review according to law; and

(c) the first respondent pay the applicant’s costs of the proceeding.

3. The first respondent pay the appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant is a citizen of Papua New Guinea (PNG). She appeals a decision of the Federal Circuit Court of Australia which dismissed her application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) to refuse the appellant’s application for a protection (class XA) visa.

Background

2. The appellant arrived in Australia on 31 March 2009 on a visitor’s visa which expired on 30 June 2009, at which time she became an unlawful non-citizen.

3. The appellant made an initial application for a protection visa on 8 November 2010. That application was determined to be invalid.

4. On 22 March 2011, the appellant made a second application for a protection visa. The second application was made on the ground that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, which was the criterion that was at that time provided for by s 36(2)(a) of the Act. The second application was refused by a delegate of the Minister on 9 June 2011. The appellant sought review of that decision by the Refugee Review Tribunal, which affirmed the delegate’s decision on 31 October 2011.

5. The Migration Amendment (Complementary Protection) Act 2011 (Cth) (2011 amending Act) inserted s 36(2)(aa) of the Migration Act which, as the title of the amending Act indicates, contains complementary grounds for protection. Section 36(2)(aa) commenced operation on 24 March 2012.

6. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, the Full Court held that an applicant who had been refused a protection visa prior to the insertion of s 36(2)(aa) was not precluded by s 48A of the Act from making a further application relying on the new criterion, as the further application did not rely upon the same criterion as the earlier application.

7. On 5 August 2013, following the decision in SZGIZ, the appellant made a third application for a protection visa. The third application was supported by a statutory declaration made by the appellant on 5 August 2013 and was limited to a claim in reliance on the complementary protection criteria in s 36(2)(aa) of the Migration Act. By her third application, the appellant made the following claims –

1. she was born in Mount Hagen in PNG on 16 March 1982;

2. in 2000, war broke out in Mount Hagen between neighbouring tribes;

3. in 2001, she was raped by members of the Kimbin Rami Tribe who threatened to kill her if she told anyone;

4. as a result of the rape, the appellant could not have children;

5. she was diagnosed with a mental disorder about six...