CBY15 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: KERR J
• Judgment Date: 23 June 2020
• Neutral Citation: [2020] FCA 878
• Date: 23 June 2020

FEDERAL COURT OF AUSTRALIA

CBY15 v Minister for Immigration and Border Protection [2020] FCA 878

Appeal from:	CBY15 & Anor v Minister for Immigration & Anor [2019] FCCA 2115
File number:	NSD 1362 of 2019
Judge:	KERR J
Date of judgment:	23 June 2020
Catchwords:	MIGRATION – application for Protection (Class XA) Visas – appeal from decision of Federal Circuit Court of Australia – where Administrative Appeals Tribunal rejected Appellants’ claims for want of credit – where adverse credit finding based on cumulative impact of five examples of want of credit – three of five examples found to be legally unsound – not possible to conclude that Tribunal would have reached same decision having regard only to the two remaining examples – jurisdictional error established – appeal upheld
Legislation:	Migration Act 1958 (Cth)
Cases cited:	AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 BMV16 v Minister for Home Affairs [2018] FCAFC 90; 261 FCR 476 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 SZHYH v Minister for Immigration (No 3) [2019] FCA 589 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; 181 FCR 113 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
Date of hearing:	17 June 2020
Date of last submissions:	3 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	169
Counsel for the Appellants:	Mr N Poynder
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Mills Oakley

ORDERS

		NSD 1362 of 2019
BETWEEN:	CBY15 First Appellant ; CBZ15 Second Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	KERR J
DATE OF ORDER:	23 June 2020

THE COURT ORDERS THAT:

1. The appeal be allowed on Ground 1.

2. The orders of the Federal Circuit of Australia dated 6 August 2019 be set aside, and in lieu thereof it be ordered that:

   1. The decision of the Administrative Appeals Tribunal dated 10 November 2016 affirming the decision not to grant the Applicants protection visas be set aside.

   2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

   3. The First Respondent pay the Applicants’ costs, as agreed or assessed.

3. The Appellants pay the First Respondent’s costs thrown away of the hearing listed for 4 February 2020, limited to the attendance of counsel and solicitor for 2 hours each.

4. Subject to Order 3, the First Respondent pay the Appellants’ costs of 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

KERR J:

1. The Appellants, a husband and wife, are citizens of the People’s Republic of China. It is not in contest that CBY15 and CBZ15 are part of the same “family unit” for the purposes of the Migration Act 1958 (Cth) (Migration Act).

2. On 2 April 2014, the Appellants arrived in Australia by air on Visitor (Subclass 600) Visas.

3. On 23 April 2014, they applied for Protection (Class XA) Visas (Protection Visas).

4. On 23 December 2014, a delegate of the Minister (the Delegate) refused that application.

5. The Appellants applied for review of that decision in the Administrative Appeals Tribunal (Tribunal).

6. On 15 September 2015, the Tribunal affirmed the decision of the Delegate. On 2 May 2016, the Federal Circuit Court of Australia (FCCA) set aside that decision by consent.

7. After a hearing on 5 July 2016 and receipt of post-hearing submissions, in a decision dated 10 November 2016 the Tribunal again affirmed the Delegate’s decision.

8. The Appellants applied for judicial review of the Tribunal’s decision in the FCCA. On 6 August 2019, the FCCA dismissed that application. It is that decision which is the subject of the present appeal.

THE APPELLANTS’ CLAIMS

9. In a written statement dated 5 April 2014 attached to the Appellants’ Protection Visa application, CBY15 sets out their claims.

10. In brief summary, CBY15 claims that his once peaceful and “rather wealthy” life in China was:

destroyed because I helped Falun Gong practitioners. I was persecuted by the Chinese Communist Party. I had to flee to Australia with my wife, separating with my lovely young son and my mother who is aged. I am in fear of being persecuted again upon my return to China. Now I apply with the Australian government for a protection visa and wish that Australian government would protect me from being persecuted.

11. CBY15 claims that his mother fell ill in 1998. She recovered with the aid of a neighbour who practiced Falun Gong. After that time, CBY15 had faith in that practice. Further, his parents began to practice Falun Gong. However, his wife (CBZ15) did not believe in or support the practice.

12. In 1999, the government began to “crack down” on Falun Gong. CBY15’s parents practiced in secret, but in 2006 were reported. The police raided their home. CBY15 describes the events of the 2006 raid as follows:

[The police] confiscated all my parents’ Falun Gong books and videos. My father tried to stop them. They beat my farther hardly and took him to local police station. Afterwards, my father was released on bail of 4000 RMB.

13. CBY15’s wife was fired from her work. She then divorced him.

14. CBY15 subsequently remarried, but soon divorced. In 2008 he remarried his first wife, CBZ15, on condition that they would not live with their parents or assist with anything related to Falun Gong. However, when in 2011 the health of CBY15’s father deteriorated she agreed to move into his parents’ home to look after them.

15. While CBY15’s parents continued to practice Falun Gong, the authorities “overlooked” this until 26 December 2012. On that day there was a further police raid and confiscation of CBY15’s parents’ Falun Gong materials. CBY15 describes that raid in the...