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 |
| 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…
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- Case
- [2018] FCCA 3226
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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