Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case)

In the Federal Court, the Australian Building and Construction Commissioner sought a judicial review of the decision of the Administrative Appeals Tribunal (AAT) to refuse a cancellation of visa by a delegate under section 501CA(4) of the Migration Act 1958 (Cth). The case involved an applicant who claimed that the Tribunal failed to consider the significance of his non-refoulement obligations and his evidence about conduct in immigration detention. The applicant, a Bosnian national, had entered Australia on a refugee visa and claimed that returning to Bosnia-Herzegovina would put his life at risk, triggering non-refoulement obligations.

The central legal issues revolved around whether the Tribunal erred in not considering the applicant’s claims about non-refoulement obligations and his conduct in immigration detention. The court also examined whether the Tribunal’s failure to consider these matters constituted a jurisdictional error, similar to the error identified in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96. The applicant argued that the Tribunal should have evaluated his non-refoulement claims and the evidence he provided regarding his treatment in detention, while the Minister contended that the Tribunal was not obliged to consider these factors.

The court determined that the Tribunal did indeed err by failing to consider the significance of the applicant’s claims about non-refoulement obligations. It held that the Tribunal’s error was analogous to the jurisdictional error identified in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, and thus the Tribunal’s decision was set aside. The court also noted that the Tribunal’s failure to consider the applicant’s evidence about his conduct in immigration detention contributed to the jurisdictional error. The matter was remitted to the Tribunal to be re-determined according to law, with the court stressing the importance of the Tribunal addressing all relevant considerations when reviewing the delegate's decision.