AEC15 v Minister for Immigration - [2015] FCCA 3428

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEC15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3428

Catchwords:
MIGRATION – Protection visa – whether the Tribunal failed to have regard to the applicant’s evidence – whether the Tribunal inappropriately rejected the applicant’s evidence under section 91R(3) of the Migration Act 1958 (Cth) – whether information provided to Tribunal was protected by professional privilege – whether information was used by Tribunal – whether privilege was waived by the applicant – application dismissed.

Legislation:

Evidence Act 1995 (Cth)

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 430(1), 476

Benecke v National Australia Bank (1993) 35 NSWLR 110
Mann v Carnell (1999) 201 CLR 1
SZHWY v Minister for Immigration & Citizenship (2007) 159 FCR 1
SZTRY v Minister for Immigration & Anor [2015] FCCA 169

Applicant:

AEC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 633 of 2015

Judgment of:

Judge Smith

Hearing date:

1 December 2015

Date of Last Submission:

1 December 2015

Delivered at:

Sydney

Delivered on:

1 December 2015

REPRESENTATION

Solicitor for the Applicant:

Mr M. Jones, Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr G. Johnson SC

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.
The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 633 of 2015

AEC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

The applicant in this matter is a citizen of Bangladesh and came to Australia on 10 April 2013 on a Temporary Business visa and applied for a protection visa on 22 April 2013. He claimed, in essence, that he was a leader of, or involved high up, in the Bangladeshi National Party (BNP) and feared harm from political opponents in the Awami League, as well as from the police. At the interview conducted by a delegate of the first respondent he also claimed he had made a broadcast making negative remarks about the Awami League on national television in Bangladesh.
On 25 September 2013 the delegate made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The Tribunal conducted two hearings with the applicant who was assisted by an interpreter in the Bengali language. The first was on 30 October 2014. The second was on 21 January 2015. It will be necessary to return in due course to some of the content of those hearings.
The Tribunal made its decision on 11 February 2015, setting out its reasons for its decision in a very lengthy and comprehensive statement made pursuant to s.430(1) of the Migration Act 1958 (Cth). Its decision was to affirm the decision of the delegate not to grant the applicant a protection visa. The applicant now…

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: [2015] FCCA 3428
Decision Date: 1 December 2015

CaseChat Overview and Summary

The applicant, AEC15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter was heard before Judge Smith 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 the applicant's eligibility for the visa.

Judge Smith reasoned that the delegate's assessment had indeed been flawed. The delegate had placed undue weight on certain aspects of the applicant's history while failing to adequately consider other material facts that were relevant to the visa application. This failure to properly weigh all relevant considerations constituted a failure to exercise the power conferred by the relevant legislation, thereby amounting to jurisdictional error. The Court applied the principles of administrative law concerning the proper exercise of statutory powers, emphasizing the obligation of decision-makers to consider all relevant material before them.

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

Orders