DAJ22 as Litigation Representative for DAH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1677

Federal Court of Australia

DAJ22 as Litigation Representative for DAH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1677 Appeal from: DAH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 662

File number: QUD 304 of 2022

Judgment of: LOGAN J

Date of judgment: 22 November 2023

Catchwords: MIGRATION – where two children, by their mother as litigation representative, appeal a decision by the Federal Circuit Court of Australia (Circuit Court) to dismiss a review application of the Minister's delegate's decision, later affirmed by the Administrative Appeals Tribunal (Tribunal), to refuse protection visas for each – where it is submitted that under s 5J of the Migration Act 1958 (Cth) the political activities of the mother, while in Australia, impute the children with a real risk of persecution if they are returned to Vietnam - where the appellants submit that the primary judge erred in failing to take into account the Tribunal's irrelevant consideration regarding the mother's motivation for her political activities – where it is submitted the judge erred in finding that the motivation for the mother's political activities was immaterial to the Tribunal's decision - where a consideration will only be irrelevant if expressed in legislation or if some other provision forbids the decision-maker taking into account Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1886) 162 CLR 24 applied – where this Court finds that the Tribunal addressed the mother's political activities in its reasons and that the primary judge addressed the appellants submissions – where this Court finds no error – whether it was unreasonable or illogical for the primary judge to find that the Tribunal's conclusion that the political activities of the appellants and their mother would not be of interest to Vietnamese authorities such that the appellant's did not have a real fear of persecution – where this Court finds that the Tribunal did address the integer of the claim in a way which was not illogical or irrational – appeal dismissed PRACTICE AND PROCEDURE – where the appellant seeks leave to raise a ground on appeal not raised in original jurisdiction – where the respondent does not object and where the Court finds the ground arguable – leave granted Coulton v Holcombe (1986) 162 CLR 1 considered; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 applied – where the appellant seeks leave to amend a ground of appeal – where the ground raises an issue not raised in original jurisdiction and where the respondent objects to amendment on the basis of evidentiary prejudice – where the Court finds the amendment is not reasonably arguable – leave to amend refused