ALI v Minister for Immigration - [2018] FCCA 835

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 835

Catchwords:
MIGRATION – Application for judicial review of decision to refuse to grant Applicant a Partner (Temporary) (Class UK) (subclass 820) visa – whether the Tribunal erred in failing to take into account evidence that was credible and relevant concerning “all of the circumstances of the relationship” as required by reg.1.15A of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in finding that the marriage was not entered into for genuine purposes – whether the Tribunal’s findings were illogical – held no jurisdictional error – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 348

Migration Regulations 1994 (Cth), reg.1.15A, sch.2 cls.820.211, 820.221

Cases cited:

Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant:

IBRAHIM ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2730 of 2015

Judgment of:

Judge Jones

Hearing date:

20 November 2017

Date of Last Submission:

20 November 2017

Delivered at:

Melbourne

Delivered on:

18 April 2018

REPRESENTATION

Counsel for the Applicant:

Ms Harris

Solicitors for the Applicant:

Bardo & Erci Lawyers

Counsel for the Respondents:

Ms Lucas

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The Applicant’s amended application for judicial review filed on

1 July 2016 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2730 of 2015

IBRAHIM ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 18 November 2015, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), dated

19 August 2014, refusing to grant the Applicant a Partner (Temporary) (Class UK) (subclass 820) visa (“the visa”) under s.65 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal’s decision is at Court Book (“CB”) 229-233.
The material before the Court is the Applicant’s amended application for judicial review filed on 1 July 2016, the Minister’s Response filed on 21 December 2015, the Applicant’s Outline of Submissions filed on 1 July 2016, the Minister’s Outline of Submissions filed on 20 July 2016 and the Court Book.
The Applicant is a citizen of Lebanon and came to Australia in November 2012 on a Prospective Marriage visa (subclass 300),…

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: [2018] FCCA 835
Decision Date: 18 April 2018

CaseChat Overview and Summary

The applicant, ALI, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse ALI's application for a protection visa. The dispute concerned the lawfulness of the Minister's decision, specifically whether it was affected by an error of law. The matter came before Judge Jones of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister, in assessing ALI's claims for protection, had failed to adequately consider or give sufficient weight to certain aspects of ALI's evidence, particularly concerning the risk of harm ALI would face upon return to their country of origin. This involved an examination of the legal obligations imposed by the *Migration Act 1958* (Cth) and relevant case law concerning the assessment of protection visa applications.

Judge Jones reasoned that the delegate's decision contained an error of law because it did not sufficiently engage with the specific details of ALI's account of past persecution and the well-founded fear of future persecution. The Court applied the principle that a decision-maker must genuinely consider all relevant evidence and provide reasons that demonstrate this consideration. In this instance, the reasons provided by the delegate were found to be inadequate, failing to grapple with the nuances of ALI's claims and thus not demonstrating a proper application of the relevant legal criteria for granting a protection visa.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders