AAS15 v Minister for Immigration - [2018] FCCA 2930

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAS15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2930

Catchwords:
MIGRATION – Application for judicial review – protection application – whether the Tribunal denied the applicant procedural fairness – application granted.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, Pt.7AA.

Migration Regulations 1994 (Cth).

Cases cited:

BMV16 v Minister for Home Affairs [2018] FCAFC 90

WZARV v Minister for Immigration and Border Protection [2015] HCA 22

Applicant:

AAS15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 441 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

20 July 2018

Date of Last Submission:

17 August 2018

Delivered at:

Melbourne

Delivered on:

18 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ambi Associates

Counsel for the First Respondent:

Ms Campbell

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 31 January 2015.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine, according to law, the application for review.
The First Respondent pay the Applicant’s costs fixed in the sum of 7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 441 of 2015

AAS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 31 January 2015. That decision affirmed the decision of a delegate not to grant the applicant a Protection (Class XA) visa (“protection visa”).
The applicant is of Tamil ethnicity and his native language is Tamil. He requires the assistance of a Tamil interpreter.
The applicant arrived in Australia on 16 July 2012 by way of unauthorised maritime arrival. The applicant applied for a protection visa on 23 November 2012. On 22 August 2013, a delegate of the Minister refused to grant the applicant a protection visa. The applicant attended the Tribunal hearing to give evidence and present arguments, assisted by his migration agent. On 31 January 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The Applicant’s Claims

The Tribunal summarised the applicant’s claims at [4] of the decision as follows:
4. In summary the applicant claimed he worked as a bus driver for two years. He was asked to transport 25 Tamil and Singhalese passengers from Kaluwanchikudy to Vaharai and a week later someone came to his home and asked about the passengers but he knew nothing about them. A week after that he was questioned about them slapped, punched and threatened with a pistol by someone on an army bike. They visited his house in May 2012 and spoke to his mother. After that he did not stay at home at night and stayed at his aunt’s house until he left Sri Lanka by boat. He fears he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2930
Decision Date: 18 October 2018

CaseChat Overview and Summary

AAS15 sought judicial review of a decision by the Minister for Immigration. The core of the dispute concerned whether the Refugee Review Tribunal (the Tribunal) had denied AAS15 procedural fairness in its assessment of a protection visa application. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Tribunal had failed to provide AAS15 with procedural fairness. This involved determining if AAS15 had been given adequate notice of the adverse information that the Tribunal intended to rely upon in making its decision, and if AAS15 had been afforded a reasonable opportunity to respond to that information.

Judge Riethmuller found that the Tribunal had indeed denied AAS15 procedural fairness. The Court reasoned that the Tribunal had relied on adverse information that had not been disclosed to AAS15, thereby preventing AAS15 from having a proper opportunity to address the material that was critical to the assessment of their protection claim. The principle applied was that a party facing an adverse decision must be informed of the case they have to meet.

The application for judicial review was granted.

Orders