ALY15 v Minister for Immigration - [2017] FCCA 406

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALY15 & ANOR v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 406

Catchwords:
MIGRATION – Judicial review – International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653
CDM16 v Minister& Anor[2016] FCCA 2758
AKD15 v Minister & Ors [2016] FCCA 2740

First Applicant:

ALY15

Second Applicant:

AMX15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 17 of 2015

Judgment of:

Judge Young

Hearing date:

1 March 2017

Date of Last Submission:

1 March 2017

Delivered at:

Darwin

Delivered on:

6 March 2017

REPRESENTATION

The Applicants by videolink:

In person

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application file 9 April 2015 be dismissed.
The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 17 of 2015

ALY15

First Applicant

AMX15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision made by a departmental officer under the International Treaty Operation Assessment process, commonly called the ITOA, following a data breach affecting the applicants in February 2014.
The applicants are father and son. The father is 54 years old and the son is 26 years old. They are Chinese citizens. They arrived lawfully in Australia on 4 May 2008 but at some point their entitlement to stay either expired or was revoked.
In 2014 there was a protection visa application made by both, as I understand it, or at least by the father with the son as a secondary applicant. The Refugee Review Tribunal rejected that application on 28 May 2014. On 12 March 2014 the applicants were informed of the event, commonly known as the data breach, when in February 2014 the personal details of about 9,000 persons were released accidentally by the Department on the internet. The Department undertook the ITOA process as mentioned in respect of the applicants. The purpose of the ITOA process was to determine whether Australia’s non-refoulement obligations were engaged as a result of the data breach so the applicants should not be returned to China. It was determined on 13 April 2015 that those obligations were not engaged.
In the ITOA process the applicants…

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 ALY15 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: [2017] FCCA 406
Decision Date: 6 March 2017

CaseChat Overview and Summary

The applicant, ALY15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant ALY15 a visa. The matter was heard by Judge Young in the Federal Circuit and Family Court of Australia.

The central 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 delegate of the Minister, in assessing ALY15's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision.

Judge Young found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to the assessment of ALY15's eligibility for the visa. This failure to consider a mandatory relevant consideration constituted a jurisdictional error. Consequently, the Minister's decision was set aside. The Court ordered that the application for the visa be remitted to the Minister for reconsideration according to law.

Orders