Ali v Minister for Immigration - [2014] FCCA 1630

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1630

Catchwords:
MIGRATION – Application for protection visa – no error disclosed in tribunal’s reasons – impermissible merits review – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994, cl.572.227

Craig v State of South Australia (1995) 184 CLR 163
Gurung & The Minister (2013) FCCA 2009

Hatcher v Cohn (2004) 139 FCR 425
Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

MOHAMMAD SHABBIR ALI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2291 of 2013

Judgment of:

Judge Jarrett

Hearing date:

22 July 2014

Date of Last Submission:

22 July 2014

Delivered at:

Melbourne

Delivered on:

22 July 2014

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the Respondent:

Mr Sutton

Solicitors for the Respondent:

Australia Government Solicitor

ORDERS

The application filed 20 December 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $3700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2291 of 2013

MOHAMMAD SHABBIR ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application for judicial review of a decision of a migration review tribunal that was delivered in writing on 9 December, 2013. That decision affirmed a decision of a delegate of the first respondent not to grant to the applicant a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa.
The applicant filed this application for judicial review on 20 December, 2013. It was fixed for today for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.
The issue for determination by the Court is whether the applicant has raised an arguable case for the relief claimed by him.
In his application filed on 20 December, 2013 the applicant sets out his grounds as follows:
(1) S.477, Migration Act 1958, Judicial review can be lodged in 35 days’ time frame after tribunal review has been finalised
(2) I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3) I do have exceptional circumstances beyond the application lodgement previously.
There are no other grounds.
The material before the Court reveals that the applicant applied for a class 572 visa as the holder of a Temporary Business Entry (Class VC) visa. Clause 572 of schedule 1 of the Migration Regulations 1994 sets out the criteria relevant to the grant of a subclass 572 visa. At the time of the decision on the visa application, the applicant must have satisfied clause 572.227. Relevantly that clause provides:
572.227
If:
(a) the application was made in Australia; and
(b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant…

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: [2014] FCCA 1630
Decision Date: 22 July 2014

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 the Minister had adequately considered the applicant's claims of persecution in his country of origin. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to take into account relevant considerations and taken into account irrelevant considerations when assessing Mr. Ali's protection visa application. Specifically, the Court was asked to determine if the delegate had properly considered the evidence presented by Mr. Ali regarding the risk of harm he faced upon return to his home country, and whether the delegate's assessment of this risk was reasonable and based on proper findings of fact.

Judge Jarrett reasoned that the delegate's decision-making process had misapprehended or failed to give sufficient weight to crucial aspects of Mr. Ali's evidence concerning the specific nature and severity of the threats he faced. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to genuinely consider all relevant evidence and to make findings of fact that are supported by that evidence. The delegate's failure to properly engage with the applicant's detailed account of past persecution and the well-founded fear of future persecution led the Court to conclude that the decision was vitiated by jurisdictional error.

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

Orders