FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQL15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1976 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal took into account Direction No 56 issued pursuant to s.499 of the Migration Act 1958 (Cth) (Act) – whether the Tribunal was obliged to comply with s.424A of the Act – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A), 424A, 424A(1), 430(1)(c), 499 |
| Applicant: | BQL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2235 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2235 of 2015
| BQL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant is a citizen of Sri Lanka, a Tamil, and a protestant Christian. He claimed protection on the grounds that he is a Tamil, that he will be imputed with a political opinion favourable to the Liberation Tigers of Tamil Eelam (LTTE), and that he is a member of a particular social group, namely, failed asylum seekers.
It is unnecessary to say anything further about the first two of the three claims for protection because the applicant does not claim the Tribunal made any jurisdictional error by rejecting those claims. The applicant does claim the Tribunal made jurisdictional errors in rejecting the third of his claims for protection; and…
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- Case
- [2017] FCCA 1976
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the nature of the obligation imposed by Direction 56, specifically what it means for a decision-maker to "take into account" legal opinions, as opposed to factual matters. This required the court to distinguish the standard of consideration for legal guidance from that for factual evidence, particularly in the context of assessing claims for complementary protection.
Judge Manousaridis reasoned that the obligation under Direction 56 to "take into account" the Guidelines, which contain opinions about the law, differs from the obligation to consider factual matters. Citing cases such as *Lafu v Minister for Immigration and Citizenship* and *Telstra Corporation Ltd v Australian Competition and Consumer Commission*, the court noted that consideration of factual matters often implies giving them weight as a fundamental element of the determination. However, the court distinguished this from the requirement to consider legal opinions, which involves an active intellectual process directed at understanding and applying the law relevant to the assessment of protection claims. The court emphasised that the meaning of "take into account" must be understood in the context of the specific provision, and in this instance, it related to the application of legal principles rather than the weighing of factual evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Counsel for the applicant also relied on the judgment of the Full Federal Court in Lafu v Minister for Immigration and Citizenship which included the following passage:[24]The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge’s decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181–182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267].[24] [2009] FCAFC 140 at [47] Both Perry J in Sino Iron and the Full Federal Court in Lafu referred with approval to a section of the reasons for judgment of Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission that included the following:[25]A decision-maker must give proper, genuine and realistic consideration to the merits of the case. . . . In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration “… involves an active intellectual process” directed at the nominated subject-matter . . . .[25] [2008] FCA 1758 at [106] Like all words used in a statute or legislative instrument, the meaning of “take into account” as used in Direction 56 must be considered in the context in which that expression appears. As the Guidelines themselves state, their purpose is to advise “decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the” Act. The matters, therefore, that the decision maker is required to take into account are not matters of fact but statements, or, more accurately, opinions about the law that are relevant to determining whether a person meets the criteria for protection under the complementary protection provisions of the Act, and how those rules should or may be applied in any given case. This distinguishes the obligations imposed by Direction 56 on decision makers to take into account the Guidelines from obligations imposed by statutory or regulatory provisions, such as those considered, for example, by the High Court in R v Hunt; Ex parte Sean Investments Pty Ltd,[26] by Rares J and the Full Federal Court in Telstra Corporation,[27] by the Full Federal Court in Lafu and, by Perry J in Sino Iron. In those cases the relevant provision required the decision maker to take into account or have regard to matters of fact. These provisions have been interpreted as requiring the decision maker to give weight to each matter “as a fundamental element in making his determination”.[28] That, however, does not accurately describe the nature of the obligation imposed by Direction 56 on decision-makers to take into account what amount to opinions about the law to be applied to the assessment of claims for complementary protection; and that is so for two reasons.[26] (1979) 180 CLR 322[27] Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 182 (Rares J); Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] (the Court))[28] R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329