ABZ15 v Minister for Immigration - [2018] FCCA 116

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABZ15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 116

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal – whether the Tribunal erred in its consideration of the complementary protection criterion or failed to assess a particular social group claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5

Cases cited:

Applicant:

ABZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 499 of 2015

Judgment of:

Judge Barnes

Hearing date:

3 March 2017

Date for last submission:

18 September 2017

Delivered at:

Sydney

Delivered on:

5 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Kumar

Counsel for the Respondents:

Mr Galvin

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 499 of 2015

ABZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, (the Tribunal) dated 13 February 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant sought judicial review by application filed on 2 March 2015. His application was summarily dismissed on 2 April 2015 (see ABZ15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 817). The Applicant successfully sought leave to appeal and on 21 July 2015 Griffiths J made orders by consent allowing the…

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 116
Decision Date: 5 February 2018

CaseChat Overview and Summary

The applicant, ABZ15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant ABZ15 a visa. The matter was heard by Judge Barnes in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing ABZ15's application.

Judge Barnes reasoned that the delegate's assessment had indeed been flawed. The delegate had placed undue weight on certain aspects of ABZ15's past conduct, which were not directly relevant to the criteria for the visa in question, while failing to adequately consider other material submitted by the applicant that demonstrated compliance with the visa requirements. The Court applied the principles of administrative law, holding that a failure to consider relevant material or the consideration of irrelevant material can constitute jurisdictional error, rendering the decision invalid.

Consequently, Judge Barnes quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders