AFD16 v Minister for Immigration and Border Protection [2020] FCA 964

FEDERAL COURT OF AUSTRALIA

AFD16 v Minister for Immigration and Border Protection [2020] FCA 964 Appeal from: AFD16 & Anor v Minister for Immigration & Anor [2016] FCCA 2810

File number: NSD 2129 of 2016

Judge: PERRY J

Date of judgment: 10 July 2020

Catchwords: MIGRATION – appeal from Federal Circuit Court (FCC) dismissing application for judicial review of decision by Administrative Appeals Tribunal (AAT) affirming decision not to grant the appellant family protection visas – where father and mother claimed among other things to fear that their extended family would subject their minor daughters to female genital mutilation if returned to Egypt – where psychiatric evidence that father suffered from serious mental illness pointed to significant and relevant disadvantages attending the giving of his evidence – where AAT failed comprehensively to engage in a meaningful consideration of the psychiatric evidence in making adverse credibility findings including deliberate dishonesty, despite ostensibly accepting the medical opinion – where AAT accepted psychiatric diagnosis but not symptoms underpinning diagnosis applying SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262 – where error in assessment of credibility material to AAT decision – consideration of principles governing judicial review of credibility findings by administrative decision-maker – appeal allowed MIGRATION – where finding that father would be able to return to work in Egypt in reasonably foreseeable future had no probative foundation in the psychiatric evidence and was illogical – where finding failed genuinely to consider the human consequences of returning the family to Egypt by honestly confronting what that would mean, having regard to the psychiatric evidence – where error not material MIGRATION – whether AAT failed to afford appellants a real opportunity to give evidence and make submissions contrary to s 425, Migration Act – where, despite concerns about fairness of the hearing, the evidence did not establish that the father was entirely unfit to attend the AAT hearing applying BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116 – whether AAT's conduct in restricting the appellants' representatives' participation in the hearing constituted jurisdictional error – whether the AAT failed to apply the "real chance" test and consider the possibility that its finding that there was no real risk to the daughters of genital mutilation in Egypt might be wrong - whether FCC denied appellants natural justice