AMO18 v Minister for Home Affairs [2020] FCA 1403

Procedural Posture

Migration Appeal Concerning Protection Visa Claims and Alleged Jurisdictional Error by the Administrative Appeals Tribunal / Appeal to the Federal Court of Australia From Orders of the Federal Circuit Court of Australia Dismissing an Application for Constitutional Writs

Legal Issues

1. 1 ['Whether the Tribunal asked and answered the correct question under s 36(2B)(b) of the Migration Act 1958 (Cth) after accepting that the appellants faced a real risk of significant harm from Mr A.' 'Whether the Tribunal fell into jurisdictional error by finding that the appellants would not be considered, respectively, a divorcee and family members of a divorcee in the Philippines because divorce is not legal there and the Australian divorce would not be recognised.' "Whether the primary judge erred in failing to find that the Tribunal's conclusion at [110] lacked an evident and intelligible justification or was legally unreasonable." 'Whether the primary judge erred in dealing with the inquiry required by s 36(2)(aa) and s 36(2B)(b) of the Migration Act 1958 (Cth).']

Ratio Decidendi

The Tribunal did not fall into jurisdictional error in its state protection analysis because, read as a whole, it considered the appellants' particular circumstances and whether Philippine authorities could provide protection such that there would not be a real risk of significant harm. However, the Tribunal did fall into jurisdictional error in rejecting the claim based on being a divorcee and family members of a divorcee: its conclusion that the appellants would not be regarded in that way in the Philippines was not supported by the premise that divorce is illegal there and the Australian divorce would not be recognised. That illogical and unreasonable conclusion disposed of the claim...

Court Disposition

Appeal upheld; Federal Circuit Court orders set aside; constitutional writs granted in part; matter remitted to the Administrative Appeals Tribunal for determination according to law; costs awarded to the appellants.

Orders

• ['The appeal is upheld.' "The orders of the Federal Circuit Court of Australia made on 21 November 2018 are set aside and in their place orders are made for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal made on 15 November 2017 to the extent that the Tribunal...