Ali v Minister for Immigration - [2016] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2314

Catchwords:
MIGRATION – Application for judicial review of the decision of the Administrative Appeals Tribunal regarding a carer’s visa – whether the Tribunal’s decision regarding reg.1.15AA(1)(e) of the Migration Regulations 1994 discloses jurisdictional error – jurisdictional error found – relief granted.

Legislation:

Migration Regulations 1994, reg.1.15AA, cl.116.221 of Sch.2

Cases cited:

Anveel and Ors v Minister for Immigration and Anor [2013] FCCA 2181
Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48
Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
Jajo v Minister for Immigration and Border Protection (2013) 281 FLR 269
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Naidu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 284

Nguyen v Minister for Immigration and Border Protection [2016] FCA 688

Applicant:

AICHE JABAR ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1858 of 2015

Judgment of:

Judge Jones

Hearing date:

18 May 2016

Date of Last Submission:

18 May 2016

Delivered at:

Melbourne

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Goodwin

Solicitors for the Applicant:

Lawson Bayly

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ in the nature of certiorari issue quashing the decision of the Second Respondent dated 8 July 2015, to affirm the decision of the delegate of the First Respondent to refuse to grant the Other Family (Migrant) (Class BO) visas to the Applicants.
A writ in the nature of mandamus issue, directed to the Second Respondent, requiring it to determine the Applicants’ application according to law.
The First Respondent pay the Applicants’ costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1858 of 2015

AICHE JABAR ALI

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 by the Administrative Appeals Tribunal (“the Tribunal”) dated 8 July 2015, affirming a decision of the delegate of the First Respondent (“the Minister”) refusing to grant the Applicant’s son, Mohamed Dabbagh (“the visa Applicant”), and his dependents, an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer) (“the carer visa”).
The issues in this case concerned the construction and application of reg.1.15AA(1)(e) of the Migration Regulations 1994 (“the Regulations”).
The criteria for the grant of the carer visa are set out in cl.116.221 of Sch.2 to the Regulations. Relevantly, it required the Tribunal to be satisfied that the visa Applicant was the “carer” of his mother, the review Applicant. The expression “carer” was defined by reg.1.15AA(1) of the Regulations, which relevantly provided as follows:
An applicant for a visa is a carer of a person … if:
(a)…

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: [2016] FCCA 2314
Decision Date: 6 September 2016

CaseChat Overview and Summary

In *Ali v Minister for Immigration*, the applicant, Mr. Ali, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute centred on whether Mr. Ali had established a well-founded fear of persecution for a Convention reason.

The Federal Court was required to determine whether the delegate of the Minister had erred in law by failing to properly consider the applicant's claims regarding his fear of persecution based on his imputed political opinion and membership of a particular social group. Specifically, the court had to assess whether the delegate's assessment of the evidence and the application of the relevant legal principles to Mr. Ali's circumstances were reasonable and lawful.

Judge Jones found that the delegate had failed to adequately assess the credibility of Mr. Ali's claims and had not properly considered the objective country information in light of the applicant's subjective experience. The court reiterated the principles that a well-founded fear requires both a subjective fear and an objective basis for that fear, and that the assessment must be holistic, considering all aspects of the applicant's evidence and the country information. The delegate's failure to engage with crucial aspects of the evidence led to an unreasonable conclusion.

The application for judicial review was granted, and the decision of the Minister was set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders