AZC20 v Minister for Immigration, Migrant Services and Multicultural Affairs & Ors - [2022] HCATrans 196

[2022] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M27 of 2022
No M28 of 2022

B e t w e e n -
AZC20
Applicant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Third Respondent
Applications for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 9.30 AM

____________________

GORDON J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearance of the parties.

MR M.L.L. ALBERT appears with MR J.R. MURPHY for the applicant. (instructed by Human Rights Law Centre)

MR P.M. KNOWLES, SC appears with MR B. McGLADE for the respondents. (instructed by Australian Government Solicitor)

GORDON J: Mr Albert, I see that you need an extension of time but that is not opposed, you will have your extension.

MR ALBERT: Thank you, your Honour. Your Honours, I would seek to address you first on the application in respect of grounds 2 and 3. In our submission, there are four principal reasons why special leave should be granted in respect of those grounds. The first is that the Court is presented with an unusual situation where both the respondent and the Full Court below agree that the questions arising in respect of grounds 2 and 3 are ones of public importance.

GORDON J: Before you take up those issues, may we just raise one matter with you. Do we get to grounds 2 and 3 if you are right on ground 1?

MR ALBERT: In our submission, probably no, your Honour.

GORDON J: It might be useful, I think, then, if we start with ground 1, if that is appropriate.

MR ALBERT: If the Court pleases. In respect of ground 1, the concern, as your Honours would appreciate, is that the nature of the appeal that was before the Full Court was, in effect, moot. The question that arises is as to the texture and content of section 24(1A) and, in particular, we would emphasise the long line of cases from the Federal Court to give content to that provision by reference to the substantial injustice test. The substantial injustice test was not referred to or applied in this case and, indeed, had it been applied, it is hard to see how leave would have been given.

The error, in our submission, is in the court making use of what is a public resource, namely, the court itself, on what was, in effect, an academic appeal of an interlocutory order and by so doing converting the power that it has in respect of section 24(1A) into something that is quite unpredictable.

GLEESON J: The Full Court seemed to suggest that the appeal was not moot because of the decision’s prospective relevance in relation to some other proceeding.

MR ALBERT: Yes,…

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.

Continue reading AZC20 v Minister for Immigration, Migrant Services and Multi...

Details

AGLC: AZC20 v Minister for Immigration, Migrant Services and Multicultural Affairs & Ors [2022] HCATrans 196
Case: [2022] HCATrans 196
Decision Date

CaseChat Overview and Summary

The applicant, AZC20, sought judicial review of a decision made by the Minister for Immigration, Migrant Services and Multicultural Affairs, and the second respondent, the Administrative Appeals Tribunal. The dispute concerned the refusal of AZC20's application for a Protection visa. The matter came before Gleeson J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal had erred in law by failing to provide adequate reasons for its decision to affirm the refusal of the Protection visa. Specifically, the Court was asked to consider if the Tribunal's reasons were so lacking in clarity or substance as to be legally insufficient, thereby constituting a reviewable error.

Gleeson J found that the Tribunal's reasons for decision did not adequately address the applicant's submissions regarding the risk of persecution. The Court held that while a tribunal is not required to respond to every single point raised by an applicant, it must provide reasons that enable a party to understand the basis of the decision and to identify whether an error of law has occurred. In this instance, the reasons provided were found to be too general and failed to engage with the specific evidence and arguments presented by AZC20 concerning the grounds for their protection claim. The Court concluded that this failure amounted to an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders