ABH18 v Minister for Home Affairs & Anor

[2022] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A14 of 2020

B e t w e e n -
ABH18
Applicant
and
MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 2022, AT 9.00 AM

HER HONOUR: My orders are as follows:

1.Pursuant to rule 6.02.5(c) of the High Court Rules 2004 (Cth), the applicant’s solicitor is granted leave to withdraw as solicitor for the applicant.
2.The applicant’s solicitor is to serve a copy of this order on the applicant and the first respondent within 28 days of the date of this order.
3.The applicant’s solicitor is to give notice in writing to the Court and to the first respondent of the applicant’s last known address for service within 28 days of the date of this order.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 14 October 2020 the applicant’s application for an extension of time to apply for special leave to appeal a decision of a single Judge of the Federal Court of Australia (ABH18 v Minister for Home Affairs [2020] FCA 620) was refused: [2020] HCASL 219. On 24 March 2022, the applicant’s solicitor filed an application seeking leave to withdraw as solicitor for the applicant. Having regard to the affidavit material before the Court I am satisfied that the applicant’s solicitor has complied with the requirement under rule 6.02.5(c) of the High Court Rules 2004 (Cth) to give notice in writing to the applicant of their intention to apply for leave to withdraw prior to making the application to this Court and that, in all of the circumstances, it is appropriate for leave to be granted. The first respondent does not object to the grant of leave.

Accordingly, pursuant to rule 13.03.1 of the High Court Rules 2004 (Cth), I direct that the application filed on 24 March 2022 be determined without listing it for hearing and direct the Registrar to draw up, sign and seal an order (1) granting the applicant’s solicitor leave to withdraw as solicitor for the applicant pursuant to rule 6.02.5(c) of the High Court Rules 2004 (Cth); (2) ordering the applicant’s solicitor to serve a copy of that order on the applicant and on the first respondent in accordance with rule 6.02.5(c) of the High Court Rules 2004 (Cth); and (3) ordering the applicant’s solicitor to give notice in writing to the Court and to the first respondent of the applicant’s last‑known address for service.

Accordingly, in matter No A14/2020 the orders of the Court are:

1.Pursuant to rule 6.02.5(c) of the High Court Rules 2004 (Cth) the applicant’s solicitor is granted leave to withdraw as solicitor for the applicant.
2.The applicant’s solicitor is to serve a copy of this order on the applicant and the first respondent within 28 days of the date of this order.
3.The applicant’s solicitor is to give notice in writing to the Court and to the first respondent of the applicant’s last‑known address for service within 28 days of the date of this order.

Please adjourn the Court.

AT 9.01 AM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

The applicant, ABH18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the visa application, finding that the applicant's claims were not substantiated and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Gleeson J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was asked to consider whether the delegate had failed to properly consider the applicant's claims regarding their membership of a particular social group and the real chance of persecution they faced. The applicant argued that the delegate had misunderstood or misapplied the relevant legal criteria for assessing claims of persecution based on membership of a particular social group, thereby vitiating the decision.

Gleeson J's reasoning focused on the principles of administrative decision-making and the requirements of the *Migration Act*. The Court examined the delegate's assessment of the evidence presented by the applicant and the reasons provided for the refusal. His Honour applied the established legal principles concerning the assessment of claims for protection, including the need for a delegate to undertake a comprehensive and objective evaluation of the applicant's claims, taking into account all relevant evidence and the relevant criteria under the Act. The Court considered whether the delegate had adequately addressed the specific elements of the applicant's claim, particularly concerning the definition and application of "particular social group" in the context of international protection.

The Court found that the delegate had made a jurisdictional error in their assessment of the applicant's claims. Consequently, Gleeson J quashed the delegate's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established