ALP15 v Minister for Immigration - [2016] FCCA 1151

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1151

Catchwords:
MIGRATION – Protection visa (Class XA) application –review of decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.414 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider all of the applicant’s claims – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
SZSSC v Minister for Immigration & Border Protection (2014) 317 ALR 365, [2014] FCA 863
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184

Applicant:

ALP15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1024 of 2015

Judgment of:

Judge Smith

Hearing date:

5 April 2016

Date of Last Submission:

5 April 2016

Delivered at:

Sydney

Delivered on:

5 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Rasan T Selliah & Associates

Solicitors for the Respondents:

Ms P. Blackadder, Sparke Helmore

ORDERS

The applicant have leave to file the amended application in the form attached to written submissions filed on 23 March 2016.
The applicant pay the first respondent’s costs thrown away by the amendment.
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 18 March 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 23 September 2013 according to law.
The first respondent pay the applicant’s costs set in the amount of $6,825.
The costs to be paid by the applicant in accordance with order 2 be set off against the costs to be paid in accordance with in order 6.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1024 of 2015

ALP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

The applicant in this matter arrived in Australia on 31 July 2012. He is a young male fisherman from the north-east of Sri Lanka, and is of Tamil ethnicity. He lodged an application for a protection visa on 6 December 2012.
There were a number of claims that the applicant based the application to the Tribunal on. These included, amongst others, that as a Tamil fisherman, he and his family had in the past been harassed by government authorities and Sinhalese fishermen and that Tamil fishermen in general, are subject to such interference in their traditional fishing in the north-east and other areas of Sri Lanka that they are now facing extreme hardship…

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 1151
Decision Date: 5 April 2016

CaseChat Overview and Summary

The applicant, ALP15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant ALP15 a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary 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 Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

Judge Smith reasoned that the Minister's decision-making process had indeed been vitiated by jurisdictional error. The Court found that the Minister had failed to adequately consider certain evidence provided by ALP15, which was a relevant consideration in assessing the application. This failure meant that the Minister had not properly exercised the power conferred upon them by the relevant legislation. The Court applied the principles established in cases concerning the duty to consider relevant material when exercising administrative power.

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

Orders