FEDERAL COURT OF AUSTRALIA
CHJK v Minister for Home Affairs [2019] FCA 1330
Review from: Re CHJK and Minister for Home Affairs [2019] AATA 584 File number: NSD 650 of 2019 Judge: FLICK J Date of judgment: 23 August 2019 Catchwords: MIGRATION – failure to consider an international treaties obligations assessment – failure made out by absence of any reference in reasons to the assessment and an absence of any findings made as to the assessment Legislation: Migration Act 1958 (Cth) ss 499, 501, 501CA
Federal Court Rules2011 (Cth) r 4.12
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Home Affairs v Buadromo [2018] FCAFC 151, (2018) 362 ALR 48
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Swift v SAS Trustee Corporation [2010] NSWCA 182, (2010) 6 ASTLR 339
Date of hearing: 7 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr I Chatterjee Solicitor for the Applicant: Human Rights for All Pty Ltd Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 650 of 2019 BETWEEN: CHJK
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.The decision of the Second Respondent is set aside.
2.The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law.
3.The First Respondent is to pay the costs of the Applicant, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
The Applicant in the present proceeding is identified by the pseudonym CHJK. He is from South Sudan.
In June 2006, the Applicant arrived in Australia under a Global Special Humanitarian visa. His wife and two children were also granted this visa. But in November 2011 the Applicant’s visa was cancelled. He had been convicted in 2010 of a number of offences, including domestic violence. He was again convicted in 2011 “for Stalk/intimidate intend fear of physical/mental harm” and contravening an “[apprehended violence order] (domestic)”. The Applicant then applied and, in 2013, was granted a Protection visa.
In October 2015, he was convicted in the District Court of New South Wales of common assault and reckless wounding and was sentenced to 38 months imprisonment. His Protection visa was then mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). The Applicant…
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- Case
- [2019] FCA 1330
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the AAT had erred in not considering the International Treaties Obligations Assessment and whether this failure constituted a material error affecting the outcome of the case. Additionally, the court had to assess whether the AAT's reasons for its decision were sufficient despite not explicitly mentioning every piece of evidence or finding in the Assessment. The Applicant argued that the AAT's failure to refer to certain findings, particularly those related to his mental health and the unavailability of his medication in South Sudan, was a significant oversight.
The Federal Court found that while the AAT had indeed addressed the medical difficulties facing CHJK, it had not adequately considered the International Treaties Obligations Assessment. The court held that although the AAT was not required to refer to every piece of evidence or finding, it had an obligation to engage in an active intellectual process in considering relevant matters and contentions. The court concluded that the AAT's failure to consider the Assessment was a material error, leading to the decision being set aside. The matter was remitted to the AAT for reconsideration in accordance with the law. The court also ordered that the Minister for Home Affairs pay the Applicant's costs.
Orders
Orders of the court
1. The decision of the Second Respondent is set aside.
2. The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law.
3. The First Respondent is to pay the costs of the Applicant, either as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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