CAR15 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 09 September 2019
• Neutral Citation: [2019] FCAFC 155
• Date: 09 September 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155

Appeal from:	CAR15 v Minister for Immigration & Anor [2018] FCCA 2286
File number:	VID 1465 of 2018
Judges:	ALLSOP CJ, KENNY AND SNADEN JJ
Date of judgment:	9 September 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia – judicial review of decision of the Administrative Appeals Tribunal affirming refusal to grant a protection (class XA) visa – whether tribunal committed jurisdictional error – reasonableness of relocation – whether reasonableness assessed in respect of the appellant or her parents – whether clear particulars given of information that the tribunal considered would be dispositive – whether tribunal failed to consider a material contention – appeal allowed
Legislation:	Migration Act 1958 (Cth) Pt 7, ss 5H, 5J, 36, 417, 422B, 424A, 425, 471, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) item 7 Federal Court Rules 2011 (Cth) r 36.03
Cases cited:	AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 CRI028 v Republic of Nauru (2018) 92 ALJR 568 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 Hay v Minister for Home Affairs [2018] FCAFC 149 Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 Minister for Home Affairs v Buadromo (2018) 362 ALR 48 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 MZZQV v Minister for Immigration and Border Protection [2015] FCA 533 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZATV v Minister for Immigration (2007) 233 CLR 18 SZBYR v Minister for Immigration and Citizenship (2007 81 ALJR 1190 SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 SZGPS v Minister for Immigration and Citizenship [2007] FCA 639 SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Tickner v Chapman (1995) 57 FCR 451 Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302
Date of hearing:	16 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	80
Counsel for the Appellant:	Mr A Aleksov
Solicitor for the Appellant:	Asylum Seeker Resource Centre
Counsel for the First Respondent:	Mr N Wood
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 1465 of 2018
BETWEEN:	CAR15 BY HER TUTOR MZZTE Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	ALLSOP CJ, KENNY AND SNADEN JJ
DATE OF ORDER:	9 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court of Australia dated 7 September 2018 be set aside and, in lieu thereof, it be ordered that:

   1. a writ of certiorari be issued quashing the decision of the second respondent made on 9 September 2015 in case number 1412486;

   2. a writ of mandamus be issued directed to the second respondent requiring it to determine the application for review of the decision made by a delegate of the first respondent on 3 July 2014 according to law; and

   3. the first respondent pay the applicant’s costs of and incidental to the application filed by or on behalf of the applicant on 7 October 2015.

3. The first respondent pay the appellant’s costs of and incidental to the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1. The appellant was born in Australia on 14 November 2013. Her parents are both Nigerian by nationality, as is she. The appellant, then an infant, made a valid application (via her mother) under the Migration Act 1958 (Cth) (hereafter, “the Act”) for a protection (class XA) visa on 24 December 2013. That application came for consideration before a delegate of the first respondent (hereafter, “the Minister”), who, by written notice dated 3 July 2014, rejected it.

2. On 16 July 2014—again, through the agency of her mother—the appellant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (hereafter, “the Tribunal”), for a review of that decision under Pt 7 of the Act. On 9 September 2015, the Tribunal affirmed the Minister’s decision not to grant the appellant a protection visa.

3. On 7 October 2015, the appellant applied (again through her mother) to the Federal Circuit Court of Australia (hereafter, the “Federal Circuit Court”) under s 476(1) of the Act to have the Tribunal’s decision set aside and re-determined according to law. That application was twice amended (in June and then August of 2018) and heard in August 2018. The appellant contended in that court that the Tribunal’s decision was a product of jurisdictional error and, as such, that she was entitled to the relief claimed. On 7 September 2018, the Federal Circuit Court dismissed the appellant’s application, with costs.

4. The orders of the Federal Circuit Court are the subject of the present appeal.

Procedural history The administrative findings

5. At the time of the Tribunal’s decision, the appellant was the younger of her parents’ two daughters. Her mother,...