AJX15 v Minister for Immigration - [2015] FCCA 1839

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJX15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1839

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – complementary protection – law of general application – procedural fairness – whether the Tribunal put adverse information to the applicant – application dismissed.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 499

Migration Regulations 1994

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZTAL v Minister for Immigration and Border Protection [2015] FCCA 54
SZSPE v Minister for Immigration [2014] FCA 267
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

AJX15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 945 of 2015

Judgment of:

Judge Street

Hearing date:

3 July 2015

Date of Last Submission:

3 July 2015

Delivered at:

Sydney

Delivered on:

3 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr S. Speirs
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 945 of 2015

AJX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 March 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a national of Sri Lanka, and his claims were assessed against that country.
The applicant appeared before the Tribunal on 2 March 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his migration agent. The application seeking relief under s.75(v) of the Constitution was filed on 7 April 2015 and came before the Court for directions on 7 May 2015, which directions provided a timetable for the applicant to file any amended application or any affidavit evidence on which he wished to rely on or before 28 May 2015.
Beyond the Court book that was marked as an exhibit, no other affidavit evidence was filed by the applicant and the applicant has not amended the application.

Grounds of Review

The application sets out the five paragraphs in support of the alleged errors of law to support a grant of constitutional relief in respect of the decision of the Tribunal. The grounds were not numbered in the application, however for convenience in the reasons below, they are treated as being numbered as follows:
1. The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A. The RRT failed to accord…

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 1839
Decision Date: 3 July 2015

CaseChat Overview and Summary

The applicant, AJX15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant AJX15 a visa. The matter was heard before Judge Street 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 consider whether the delegate of the Minister, in assessing AJX15's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Street reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider the evidence provided by AJX15 regarding their circumstances, particularly in relation to the criteria for the visa subclass applied for. The Court applied the principles established in administrative law concerning the duty of a decision-maker to consider all relevant material placed before them. The failure to do so amounted to a jurisdictional error.

Consequently, Judge Street quashed the Minister's decision to refuse the visa and remitted the application to the Minister for reconsideration according to law.

Orders