AXR16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: THAWLEY J
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] FCA 42
• Date: 29 January 2019

FEDERAL COURT OF AUSTRALIA

AXR16 v Minister for Immigration and Border Protection [2019] FCA 42

Appeal from:	AXR16 v Minister for Immigration & Anor [2018] FCCA 1901
File number:	VID 802 of 2018
Judge:	THAWLEY J
Date of judgment:	29 January 2019
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – whether Tribunal failed to conduct the “review” contemplated by the Migration Act 1958 (Cth) – whether constructive failure to exercise jurisdiction
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65(1); Pt 7, s 414(1)
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Selvadurai v the Minister of Immigration and Ethnic Affairs (1994) 34 ALD 347 Stojic v Deputy Commissioner of Taxation [2018] FCA 483 SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 VQAB v Minister for Immigration [2004] FCAFC 104 VWFW v Minister for Immigration [2006] FCAFC 29
Date of hearing:	13 November 2018
Date of last submissions:	30 November 2018 (First Respondent) 21 December 2018 (Appellant)
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	103
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Mr D Brown of the Australian Government Solicitor

ORDERS

		VID 802 of 2018
BETWEEN:	AXR16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	29 JANUARY 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

   1. there issue absolute in the first instance:

      1. a writ of certiorari directed to the second respondent to quash the decision of 12 April 2016; and

      2. a writ of mandamus directed to the second respondent requiring it to determine according to law the applicant’s application for review of the decision made by a delegate of the first respondent on 7 November 2014; and

   2. order that the first respondent pay the applicant’s costs.

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

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

REASONS FOR JUDGMENT

THAWLEY J:

1. This is an appeal from orders of the Federal Circuit Court of Australia made on 19 June 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 12 April 2016. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) made on 7 November 2014, refusing an application for a Protection (Class XA) visa.

background

2. The claims as provided by the appellant in support of her visa application were as follows:

1. The appellant was born in Zeqi Village, Sanshan Town, Fuqing City, Fujian Province and is a citizen of China.

2. The appellant’s father was a stonemason and her mother farmed on land allotted to her family by the government. The appellant’s father travelled to construction sites for work and was rarely at home.

3. In around October 2003, the appellant’s mother was converted by an activist (Ms H) of the “Local Church”. Ms H was a vegetable wholesaler who collected agricultural products from farmers such as the appellant’s mother.

4. Following the conversion of the appellant’s mother, the appellant, her father and her brother began attending meetings of the Local Church and were baptised in February 2004.

5. The appellant’s mother took the appellant and her brother to attend meetings of the Local Church on weekends. These meetings could only be held at the homes of its members because the Local Church was regarded as an “evil cult” by the Chinese Government. Due to the attention of authorities, particularly the Public Security Bureau (PSB), they changed the locations of their meetings frequently. The appellant’s home was one of the locations of these meetings.

6. In late July 2007, the appellant’s father and brother went to Fuzhou after the appellant’s father was contracted to a project manufacturing stone statues for a new residential area. Fuzhou is also in Fujian Province.

7. In early August 2007, Ms H and her husband (Mr X) arranged for five or six people from Anhui Province to stay at the appellant’s family home while they were attending an induction programme or “perfecting training” of the Local Church. They had come to Fujian solely for that purpose. The appellant and her mother took them to different places for training each day.

8. Mr X was also an activist of the Local Church. He evangelised to local residents and had established a secret meeting group for the Local Church in Anqing City, Anhui Province.

9. On 10 December 2007, at the age of 17, the appellant was removed from her classroom by police and taken to the PSB in Fuqing. While there, she saw that both Ms H and her mother had also been arrested. They were not allowed to speak with each other.

10. The appellant was interrogated by three members of the police, one female and two male. During the interrogation she was asked to confess as to her involvement with the Local Church, as well as to the activities of her mother and Ms H. She claimed that the police showed her photos of her mother and Mr X with the five or six people that had lived at her home from August 2007. She was told that the secret meeting group established by Mr X in Anqing City had been destroyed. Some Christians, including the five or six that had stayed at her home, had been arrested and Mr X’s shop had been sealed by the authorities. The police could not locate Mr X.

11. She claimed that the female member of the police had slapped her across the face, mistreated her with an electrical baton, and humiliated her through various methods. The appellant divulged nothing to the police.

12. During the evening of 10 December 2007, the appellant was transferred to Fuqing Detention Centre with her mother and Ms H. While...