CGG15 v Minister for Immigration - [2016] FCCA 219

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGG15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 219

Catchwords:
MIGRATION – Subclass 050 bridging visa – cancellation of bridging visa – applicant charged with serious criminal offences – Ministerial Direction No.63 – whether the Tribunal failed to consider or comply with Direction – whether Tribunal’s decision was based on a finding of fact for which there was no evidence – Tribunal failed to consider all of the circumstances in which the ground for cancellation arose – jurisdictional error – writs issued.

Legislation:

Crimes Act 1900 (NSW), s.61(1)

Migration Act 1958 (Cth), ss.116(1)(g), 359AA, 499

Migration Regulations 1994 (Cth), reg.2.43(1)(p)

ACH15 v Minister for Immigration & Border Protection [2015] FCCA 1250; (2015) 259 FLR 384
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, (2004) 207 ALR 12
Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109
Uelese v Minister for Immigration & Border Protection [2015] HCA 15; (2015) 89 ALJR 498

Applicant:

CGG15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2943 of 2015

Judgment of:

Judge Smith

Hearing date:

1 February 2016

Date of Last Submission:

1 February 2016

Delivered at:

Sydney

Delivered on:

10 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr S. Tully

Solicitors for the Applicant:

Baker & McKenzie

Counsel for the First Respondent:

Mr B. O’Donnell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Administrative Appeals Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 25 September 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 2 September 2015 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2943 of 2015

CGG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant is a citizen of Iran who has applied for a protection visa in order to remain in Australia. On 16 July 2015 he was granted a Class WE subclass 050 bridging visa pending the determination of that application.
The Minister has the power to cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder of the visa: Migration Act1958 (Cth) sub-s.116(1)(g). Sub-regulation 2.43(1)(p) of the Migration Regulations 1994 (Cth) prescribed the following grounds for cancellation in respect of a subclass 050 bridging visa:
… the Minister is satisfied that the holder:
(i) has been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country (other…

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 219
Decision Date: 10 February 2016

CaseChat Overview and Summary

The applicant, CGG15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CGG15 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant information or had taken into account irrelevant considerations when assessing CGG15's claims for protection.

Judge Smith found that the delegate had failed to adequately consider crucial aspects of CGG15's evidence regarding past persecution and the real chance of future persecution. The Court applied the principles of administrative law, emphasizing the duty of a decision-maker to undertake a proper consideration of all material before them. The failure to do so constituted a jurisdictional error, rendering the decision invalid.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders