ENC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 686

ENC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 686

The appeals were dismissed because the Tribunal had considered the appellants' evidence and did not misunderstand or fail to consider material claims. Its findings that ENC18's private conduct and END18's quiet conduct were not caused by a fear of persecutory or significant harm were open on the evidence and were not illogical, unreasonable or irrational. END18's evidence about dressing like a man did not raise a separate claim distinct from her overall claim to fear harm as a lesbian or Muslim lesbian, and the Tribunal dealt with that matter as part of the broader claim.

Jurisdiction
Australia
Judgment Date
24 June 2021
Procedural Posture
Migration Appeal Concerning Protection (subclass 866) Visa Refusals and Judicial Review of Administrative Appeals Tribunal Decisions / Appeal From the Federal Circuit Court Decision Dismissing Applications for Judicial Review
Outcome
Appeals dismissed with costs.
Legal Topics
['protection (subclass 866) Visa' 'jurisdictional Error' 'failure to Consider Evidence' 'legal Unreasonableness, Illogicality or Irrationality' 'lgbti Protection Claims' 'particular Social Group' 'complementary Protection']
['administrative Law' 'migration Law' 'refugee and Complementary Protection' 'judicial Review'] ['protection (subclass 866) Visa' 'jurisdictional Error' 'failure to Consider Evidence' 'legal Unreasonableness, Illogicality or Irrationality' 'lgbti Protection Claims' 'particular Social Group' 'complementary Protection']

Case Brief

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Procedural Posture

Migration Appeal Concerning Protection (subclass 866) Visa Refusals and Judicial Review of Administrative Appeals Tribunal Decisions / Appeal From the Federal Circuit Court Decision Dismissing Applications for Judicial Review

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred by failing to find that the Tribunal failed to have regard to important evidence about the appellants' protection claims or acted unreasonably in finding that their private or quiet conduct was personality-driven rather than caused by fear of harm." 'Whether the Tribunal was entitled to find that ENC18 did not have a relevant fear of serious harm amounting to persecution or significant harm in Malaysia.' 'Whether the Tribunal was entitled to find that END18 lived in a quiet fashion for personality-driven reasons and not because of a fear of persecution.' "Whether the Tribunal failed to consider a separate integer of END18's claim arising from fear of harm as a woman who dressed like a man."]

Ratio Decidendi

The appeals were dismissed because the Tribunal had considered the appellants' evidence and did not misunderstand or fail to consider material claims. Its findings that ENC18's private conduct and END18's quiet conduct were not caused by a fear of persecutory or significant harm were open on the evidence and were not illogical, unreasonable or irrational. END18's evidence about dressing like a man did not raise a separate claim distinct from her overall claim to fear harm as a lesbian or Muslim lesbian, and the Tribunal dealt with that matter as part of the broader claim.

Court Disposition

Appeals dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']