Chol v Minister for Immigration - [2018] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOL v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 306

Catchwords:
MIGRATION – Cancellation of visa – judicial review of decision to cancel and decision not to revoke cancellation – whether s.501(3A) of the Migration Act 1958 (Cth) is invalid because it purports to vest the judicial power of the Commonwealth in a person other than a Chapter III Court – whether the decision not to revoke cancellation was invalid due to a misunderstanding of the law regarding protection visa applications – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.501, 501CA

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)

Cases cited:

BCR16 v Minister for Immigration & Border Protection (2017) 248 FCR 456; [2017] FCAFC 96

Falzon v Minister for Immigration & Border Protection [2017] HCATrans 230
Falzon v Minister for Immigration & Border Protection [2018] HCA 2

Minister for Immigration & Border Protection v BCR16 [2017] HCATrans 240

Applicant:

BOUTROS CHOL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 565 of 2017

Judgment of:

Judge Smith

Hearing date:

21 November 2017

Date of Last Submission:

28 November 2017

Delivered at:

Sydney

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Nesbeth

Solicitors for the Applicant:

Nikjoo Lawyers

Counsel for the First Respondent:

Mr C Lenehan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 565 of 2017

BOUTROS CHOL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sudan. He fled from Sudan to Egypt with his family and arrived in Australia in 1999 when he was 15 years old. The applicant held a Class BA Subclass 202 Global Special Humanitarian visa.
On 19 December 2013, the applicant was sentenced in the District Court of New South Wales to a term of imprisonment for a minimum of 2 years and a maximum of 4 years in respect of a conviction on 2 counts of robbery in company. On 23 April 2015, the applicant’s visa was cancelled by the Minister for Immigration under s.501(3A) of the Migration Act 1958 (Cth) (Act) in light of his criminal record.
On the same day, the applicant was invited to make representations to the Minister about revocation of the cancellation decision. On 29 May 2015, the applicant made representations to the Minister for revocation of the cancellation. Amongst the matters raised by the applicant in his representations was that his father had been in gaol in Sudan for political reasons and that the applicant’s life could be in danger. He also said that he feared…

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: [2018] FCCA 306
Decision Date: 2 March 2018

CaseChat Overview and Summary

Chol and the Minister for Immigration were the parties in this matter before the Federal Court of Australia. The dispute concerned the lawfulness of a decision made by the Minister to refuse Mr. Chol’s application for a protection visa. Mr. Chol alleged that the Minister’s decision was vitiated by jurisdictional error.

The primary legal issue before the Court was whether the delegate of the Minister, in assessing Mr. Chol’s protection visa application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby constituting a jurisdictional error. Specifically, the Court was asked to determine if the delegate’s assessment of Mr. Chol’s claims regarding past persecution and fear of future persecution was adequate and lawful.

Judge Smith found that the delegate’s assessment of Mr. Chol’s claims was flawed. The delegate had failed to adequately consider the evidence presented by Mr. Chol concerning the specific circumstances of his alleged past persecution and the detailed reasons for his fear of future persecution. This failure amounted to a failure to consider relevant considerations, which constituted a jurisdictional error. The Court applied the principles of administrative law concerning the duty to consider relevant material when making a decision affecting a person’s rights or interests.

Consequently, the Court ordered that the Minister’s decision be set aside and remitted to the Minister for reconsideration according to law.

Orders