AJB18 v Minister for Home Affairs [2020] FCA 381

FEDERAL COURT OF AUSTRALIA

AJB18 v Minister for Home Affairs [2020] FCA 381 Appeal from: AJB18 v Minister for Home Affairs [2019] FCCA 607

File number: WAD 178 of 2019

Judge: BANKS-SMITH J

Date of judgment: 24 March 2020

Catchwords: MIGRATION - appeal from decision of Federal Circuit Court to dismiss application for judicial review of decision of Administrative Appeals Tribunal - protection visa - where child a citizen of Nepal by descent - where parents not married - where child unable to obtain evidence of citizenship - effect of absence of evidence on child's access to support and services in Nepal - Tribunal's application of test for serious harm - whether parents can mitigate harm - appeal allowed

Legislation: Migration Act 1958 (Cth) ss 5H, 36, 48A, 91R Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Schedule 5, Item 12 Migration Regulations 1994 (Cth) Schedule 2, Part 866

Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; (2015) 244 FCR 131 Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281 CFB16 v Minister for Home Affairs [2019] FCA 1415 CGA15 v Minister for Home Affairs [2019] FCAFC 46 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259