CHJK v Minister for Home Affairs

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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:

  1. The Applicant in the present proceeding is identified by the pseudonym CHJK.  He is from South Sudan.

  2. 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.

  3. 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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Details
Case
[2019] FCA 1330
Decision Date

CaseChat Overview and Summary

The case of CHJK v Minister for Home Affairs involved the Applicant, CHJK, challenging a decision made by the Administrative Appeals Tribunal (AAT) regarding his application for a visa. The primary dispute was whether the AAT had failed to adequately consider an International Treaties Obligations Assessment, which was crucial in determining the appropriate course of action for CHJK's visa application. The Federal Court was tasked with reviewing the AAT's decision and determining whether any legal errors had been made.

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

Had it been necessary to resolve the Applicant’s submission, with respect to Ground 2, as to a failure on the part of the Tribunal to consider the extent of the impediment to be faced by the Applicant by reason of its failure to make a finding of fact with respect to the submission that the Applicant would be unable to obtain medication he required in South Sudan, that argument would most probably have been rejected. The Tribunal addressed the medical difficulties confronting the Applicant. Its reasons included in relevant part as follows: [67]A Psychological Assessment Report prepared by STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) which was prepared in April 2012 refers to the fact that it would benefit the applicant if he was referred to a drug and alcohol counsellor to address his reported alcohol dependence. …The report states that the applicant felt generally dejected. The applicant claims that he has been prescribed medication for depression, which would not be available to him in the [Country 1].Counsel for the Applicant submitted that the Assessment included an express finding which was relevant to the Tribunal’s consideration of the extent of impediments if removed, namely, the finding that as “[a]s an internally displaced person with mental health issues including Post-Traumatic Stress Disorder and lacking familiarity with Juba… [the Applicant] would be particularly vulnerable to the high levels of criminality and insecurity in Juba”. Although this was a finding that was not referred to by the Tribunal, it would most probably have been concluded that: ·although the Tribunal is required to “engage in an active intellectual process” in its consideration of relevant matters and contentions, it is not required to refer in its reasons to every piece of evidence or every contention advanced (cf. Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45], (2017) 252 FCR 352 at 363 to 364 per Griffiths, White and Bromwich JJ; Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [40] per Thawley J) – and, in the circumstances of the present case, there was no imperative upon the Tribunal to expressly refer to each and every finding made in the Assessment as to the Applicant’s mental health or medication; and that·such consideration as was given to the matters ([2019] AATA 584 at [67]) would most probably have been sufficient, the “claims” being made by the Applicant having been noted and not rejected: cf. Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [46], (2018) 362 ALR 48 at 59 per Besanko, Barker and Bromwich JJ.CONCLUSIONS The Tribunal erred in failing to take into account the International Treaties Obligations Assessment. The decision of the Tribunal should be set aside and the matter remitted to it for reconsideration in accordance with law. There is no necessity to grant a writ of prohibition prohibiting the Minister and his delegates, servants or agents from acting upon or giving effect to the Tribunal’s decision.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.