ATP15 v Minister for Immigration - [2015] FCCA 2289

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATP15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2289

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal failed to particularise adverse information put to the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.418, 423, 424A, 476

Minister for Immigration & Citizenship v SZRKT (2012) FCR 99

First Applicant:

ATP15

Second Applicant:

ATQ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1336 of 2015

Judgment of:

Judge Street

Hearing date:

24 August 2015

Date of Last Submission:

24 August 2015

Delivered at:

Sydney

Delivered on:

24 August 2015

REPRESENTATION

Counsel for the Applicants:

Mr R Chia

Counsel for the First Respondent:

Mr M J Smith

Solicitors for the First Respondent:

Mills Oakley Lawyers

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The further amended application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the amount of $5800

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1336 of 2015

ATP15

First Applicant

ATQ15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal made on 21 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Pakistan, and his claims were assessed against that country. The further amended application identifies the following two grounds:
1. The second respondent (“Tribunal”) failed to have regard to a relevant consideration.
~~information that it had invited a person to give to it under section424 of the Migration Act 1958 (“Act”).~~
Particulars
By letter dated 20 March 2015, the Tribunal invited a person to give information to it regarding the applicant.
By letter dated 3 April 2015, that person gave the Tribunal information to which the Tribunal did not have regard in making the decision on the review.
2. Further or in the alternative to 1, the Tribunal failed to comply with the mandatory requirements of section 424A of the Act.
Particulars
By letter dated 19 March 2015, the Tribunal purported to invite the applicant to comment on or respond to information pursuant to section 424A of the Migration Act 1958 (“Act”).
The Tribunal did not give the applicant clear particulars of the information in accordance with subsection 424A(l) of the Act.
I note there was a third ground, which was not pressed by counsel for the applicant. In relation to the first ground, the essence of the argument that was developed was that…

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 ATP15 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: [2015] FCCA 2289
Decision Date: 24 August 2015

CaseChat Overview and Summary

The applicant, ATP15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant ATP15 a visa. The matter was heard by Judge Street 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 determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision.

Judge Street found that the Minister had failed to consider a crucial piece of evidence that was relevant to ATP15's application. This failure constituted a failure to take into account a relevant consideration, thereby vitiating the decision-making process and amounting to jurisdictional error. The Court applied the principles established in administrative law concerning the duty of a decision-maker to consider all relevant material placed before them.

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

Orders