ALF16 v Minister for Immigration - [2018] FCCA 1596

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALF16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1596

Catchwords:
MIGRATION – Application for judicial review of an Administrative Appeals Tribunal (“the Tribunal”) decision affirming a decision of a delegate of the Minister refusing to grant the applicant a Protection (Class XA) visa – the Minister issued two certificates under s.438 of the Migration Act 1958 (“the Act”) – the Tribunal did not disclose the existence of the certificates to applicant, but disclosed the information covered by the certificates under ss.424A and 424AA of the Act to the applicant – applicant invited to respond to information and did not respond – whether applicant was denied procedural fairness because he was denied the opportunity under s.438(3)(b) of the Act to request the Tribunal to disclose the source of the information – if the applicant lost this opportunity, whether he was deprived the possibility of a successful outcome – held applicant was not denied the opportunity under s.438(3)(b) of the Act to request the Tribunal to disclose the source of the information – held that if he was denied such an opportunity, he was not deprived of the possibility of a successful outcome – application dismissed with costs.

Legislation:
Migration Act 1958 (Cth), ss.36(2), 422B(2), 424A, 424AA, 429, 438, 440

Cases cited:
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198
Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197

Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1

Applicant:

ALF16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 468 of 2016

Judgment of:

Judge Jones

Hearing dates:

22 September 2017 and 7 March 2018

Date of Last Submission:

7 March 2018

Delivered at:

Melbourne

Delivered on:

22 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

WLW Migration Lawyers

Counsel for the Respondents:

Mr Yuile

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The Applicant’s Amended Application filed on 8 September 2017 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 468 of 2016

ALF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 25 February 2016 affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 6 October 2014, refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
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.

Keep reading for free

Create a free CaseChat account to read ALF16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1596
Decision Date: 22 June 2018

CaseChat Overview and Summary

ALF16 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the Tribunal had failed to adequately assess the risk of harm the applicant would face upon return to their country of origin, and whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in determining the applicant's eligibility for a protection visa.

Judge Jones found that the Tribunal had made a jurisdictional error. The Court reasoned that the Tribunal had failed to properly consider all the evidence before it regarding the applicant's subjective fear and the objective country information relevant to that fear. The Tribunal's assessment was found to be superficial and did not engage with the specific details of the applicant's claims in a manner required by law. The Court applied the principles of administrative law, emphasizing the duty of tribunals to provide adequate reasons for their decisions and to conduct a thorough and evidenced-based assessment of protection claims.

Consequently, the Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined afresh according to law.

Orders