Asenso v Minister for Immigration - [2016] FCCA 756

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASENSO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 756

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – cancellation of a spouse visa – whether it was open to base the cancellation of the visa on false statements made in support of a previous visa in circumstances where the false statements had been admitted before the current visa was granted, considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.101, 102, 103, 107, 107A, 107AA, 108, 109, 110, 111, 112, 113, 60, 474

Migration Legislation Amendment Act 1998 (Cth)
Migration Reform Act 1992 (Cth), s.49
Migration Regulations 1994 (Cth)

Cases cited:
Minister for Immigration v Jalal (2000) 102 FCR 63
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Ross v R (1979) 25 ALR 137

First Applicant:

ISAAC ASENSO

Second Applicant:

EMMANUEL ASENSO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3205 of 2014

Judgment of:

Judge Driver

Hearing date:

6 April 2016

Delivered at:

Sydney

Delivered on:

22 April 2016

REPRESENTATION

Solicitors for the Applicant:

Ms E Anang of Christopher Levingston & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court notes that the application describes the first respondent as the Migration Review Tribunal and the second respondent as the Minister for Immigration and Border Protection.
The name of the party described as the Migration Review Tribunal is amended to the “Administrative Appeals Tribunal”.
The application filed on 18 November 2014 is dismissed.
The applicants are to pay the Minister for Immigration’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3205 of 2014

ISAAC ASENSO

First Applicant

EMMANUEL ASENSO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 October 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel the first applicant’s, Mr Asenso’s, subclass 801 (spouse) visa.
There were four applicants before the Tribunal, being Mr Asenso and his three children. The same four applicants were parties to the show cause application as filed, although only two now remain, those being Mr Asenso and his son Emmanuel. It is common ground that the outcome of Mr Asenso’s challenge to the visa cancellation will determine that of Emmanuel.
The factual background to this matter is otherwise set out in the Minister’s outline of legal submissions filed on 31 March 2016.
Mr Asenso is a citizen of Ghana. His immigration history (under different names) is summarised by the Tribunal at…

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 756
Decision Date: 22 April 2016

CaseChat Overview and Summary

In *Asenso v Minister for Immigration*, the applicant, Mr Asenso, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse Mr Asenso's application for a Protection visa.

The primary legal issue before the Federal Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Asenso's claims for protection.

Judge Driver found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in his country of origin. The Court held that the delegate's assessment of the evidence was superficial and did not engage with the substance of Mr Asenso's claims, thereby constituting a failure to exercise the power conferred by the *Migration Act 1958* (Cth) according to law. The Court applied the principles of administrative law concerning the proper consideration of evidence and the avoidance of jurisdictional error.

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

Orders