AIF15 v Minister for Immigration - [2015] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIF15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1574

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – whether law of general application – whether the tribunal engaged in a qualitative assessment – no jurisdictional error.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2(a), 36(2)(aa), 91R, 476, 477, 499

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
MZAPO v Minister For Immigration & Anor [2015] FCCA 96
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39
SZTFR v Minister for Immigration and Border Protection [2015] FCA 545
Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

AIF15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 906 of 2015

Judgment of:

Judge Street

Hearing date:

5 June 2015

Date of Last Submission:

5 June 2015

Delivered at:

Sydney

Delivered on:

5 June 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms Burnett
Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 906 of 2015

AIF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1994 in respect of a decision of the Tribunal made on 9 February 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The application identified the following grounds:
1. The Tribunal did not address the question of whether being held in remand in Negombo Prison was a deprivation of liberty.
Particulars
a. The Tribunal accepted that the applicant would likely be detained for a period of days upon return to Sri Lanka [48, 52].
b. The Tribunal did not make a finding whether this detention would satisfy s91R(2)(a) Migration Act and be considered a deprivation of liberty
c. In the event that it is found that the Tribunal did in fact address the issue of whether detention in Negombo Prison is a sufficient deprivation of liberty to satisfy s91R(2)
(a) Migration Act, it is submitted that the Tribunal erred by incorrectly applying a qualitative assessment of what constitutes a deprivation of liberty, as per the decision in WZAPN.
2. The Tribunal fell into jurisdictional error by applying the wrong test to determine whether there was a real risk that the applicant would suffer significant harm [ 51]
Particulars
a. The Tribunal found that the applicant is likely to be detained for a few days [52]
b. As a result the applicant will suffer a threat to his liberty which is a significant harm.
c. That…

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 1574
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the matter of AIF15 v Minister for Immigration, the applicant 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 case was heard by Judge Street.

The primary 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 consider whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when making the decision.

Judge Street reasoned that the Minister's decision-making process had indeed been vitiated by jurisdictional error. The Court found that the Minister had failed to adequately consider certain crucial evidence presented by the applicant, which was directly relevant to the assessment of their visa application. This failure meant that the Minister had not properly exercised the power conferred upon them by the relevant legislation. The Court applied the principles of administrative law concerning the duty to consider relevant material and the prohibition against considering irrelevant material when exercising statutory powers.

The Court ordered that the Minister's decision be quashed and remitted the matter back to the Minister for reconsideration according to law.

Orders