ALC15 v Minister for Immigration - [2015] FCCA 2643

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALC15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2643

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether Tribunal failed to have regard to available evidence – whether the Tribunal was unreasonable in its findings – whether Tribunal imposed wrong test on applicant’s conversion to Christianity – whether Tribunal actually considered claim cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 36(2)(aa), 476

Tisdall v Webber [2011] FCAFC 76

Applicant:

ALC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 999 of 2015

Judgment of:

Judge Street

Hearing date:

24 September 2015

Date of Last Submission:

24 September 2015

Delivered at:

Sydney

Delivered on:

19 October 2015

REPRESENTATION

Counsel for the Applicant:

Ms M Tibbey

Solicitors for the Applicant:

Legal Aid

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 999 of 2015

ALC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 1958 in respect of a decision of the Tribunal made on 11 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 citizen of Iran, and his claims were assessed against that country. The applicant was found to have left Iran legally on 23 May 2012 and arrived in Australia as an unauthorised maritime arrival on 23 July 2012.
The applicant’s principal claims were a fear of harm in Iran as a result of incidents that allegedly caused him to flee Iran, and for the reason of converting to Christianity. Relevantly, the applicant said there was an alleged incident in May 2012, in which objection was raised to his daughter wearing the chador, in which it was accepted that there was an incident involving the daughter that took place. The Tribunal found that the incident involving the Basij boss, following the incident with his daughter, was not as severe as recounted by the applicant.
The applicant gave evidence in relation to participation in the 2009 Ashura day demonstrations, as a result of which he said he was charged and convicted and given a 10-year sentence. The applicant said he was released, after four months, on conditions which he alleged required him to report fortnightly, and the applicant contended that he was still the subject of those reporting conditions when he departed Iran. The Tribunal accepted that the applicant had been detained…

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 2643
Decision Date: 19 October 2015

CaseChat Overview and Summary

The applicant, ALC15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant ALC15 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 had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when assessing ALC15's application.

Judge Street reasoned that the delegate's assessment had indeed been flawed. The delegate had placed undue weight on certain information while overlooking other critical evidence that was relevant to the assessment criteria. This failure to properly weigh all relevant considerations constituted a jurisdictional error, rendering the decision invalid. The Court applied the principles established in administrative law concerning the duty of a decision-maker to consider all relevant material placed before them.

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

Orders