CSH18 v Minister for Home Affairs - [2018] FCCA 3226

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSH18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3226

Catchwords:

MIGRATION – Protection visa – review of decision of Administrative Appeals Tribunal – invalidity of cancellation decisions – whether the Tribunal had power to review “decision” – whether the Tribunal had power to affirm that decision – found that the Tribunal did not have the power to affirm decision – directions made.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth), ss.65, 109, 411, 414, 415, 496, pt.7

Cases cited:

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Kundu v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 765
Minister for Home Affairs v Administrative Appeals Tribunal & Ors [2018] FCCA 3229
Minister for Immigration & Multicultural Affairs v Li; Minister for Immigration & Multicultural Affairs v Kundu (2000) 103 FCR 486

Owendale Pty Ltd v Anthony (1967) 117 CLR 539
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481

First Applicant:

CSH18

Second Applicant:

CSI18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1469 of 2018

Judgment of:

Judge Smith

Hearing date:

22 October 2018

Date of Last Submission:

22 October 2018

Delivered at:

Sydney

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicants:

Ms T Baw with Mr D J McDonald-Norman

Solicitors for the Applicants:

Michael McCrudden Solicitors Pty Ltd

Counsel for the First Respondent:

Ms R Graycar

Solicitors for the Respondents:

Minter Ellison

DIRECTIONS

The parties are directed to submit short minutes of orders reflecting my reasons within 7 days of the date of this judgment.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1469 of 2018

CSH18

First Applicant

CSI18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Statement of the issue

This matter was heard together with the matter of Minister for Home Affairs v Administrative Appeals Tribunal & Ors [2018] FCCA 3229. The applicants in the first matter are citizens of Pakistan who were granted protection visas on 15 January 2013. They were both issued with notices of intention to consider cancelling those visas.
On 23 May 2017 an officer of the Department of Immigration purported to make decisions cancelling the applicants’ visas under s.109 of the Migration Act 1958 (Cth). The officer did so on the understanding that the Minister had delegated to her his power of cancellation. In fact, that understanding was incorrect and there was no valid delegation to the officer of the power to cancel a visa. Unaware of that, the applicants both applied to the Administrative Appeals Tribunal for review of the cancellation decisions. Did the Tribunal have any power to review those decisions and, if so, what was the extent of that power?

Background facts

There was no dispute about the relevant facts including the absence of proper delegation of the power to cancel. The following summary is taken…

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 3226
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, CSH18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to be a citizen of Afghanistan and alleged that they would face persecution if returned to their country of origin. The Minister's decision was made under s 48B of the Migration Act 1958 (Cth), which provides a non-compellable discretion to the Minister to allow a non-citizen to apply for a protection visa if they would otherwise be barred from doing so.

The central legal issue before the Court was whether the Minister's decision to refuse to exercise the s 48B discretion was affected by jurisdictional error. Specifically, the applicant argued that the Minister failed to consider relevant considerations, namely the applicant's claims of persecution, and took into account irrelevant considerations, such as the applicant's mode of arrival in Australia. The applicant contended that these alleged errors meant the Minister's decision was vitiated by unreasonableness or a failure to exercise the discretion according to law.

Smith J found that the Minister's delegate, in considering the s 48B application, had adequately considered the applicant's claims of persecution. The delegate's reasons demonstrated an understanding of the applicant's asserted fear of harm and the basis for that fear. While the delegate also noted the applicant's arrival by boat, this was considered in the context of the overall assessment of whether to exercise the discretion, and not as an overriding factor. The Court held that the delegate's reasoning was not so illogical or irrational as to constitute jurisdictional error.

The application for judicial review was therefore dismissed.

Orders