CSJ15 v Minister for Immigration - [2017] FCCA 781

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSJ15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 781

Catchwords:
MIGRATION – Application for protection visa – held that no jurisdictional error arises on the grounds prosecuted by the Applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A(1), 424A(3)(a), pt. 7, div.4

Cases cited:

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 41 ALD 1
MZAGE v Minister for Immigration and Border Protection [2016] FCA 630
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445

Applicant:

CSJ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2788 of 2015

Judgment of:

Judge Jones

Hearing date:

16 February 2017

Date of Last Submission:

16 February 2017

Delivered at:

Melbourne

Delivered on:

5 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr Hornsby of Sparke Helmore Lawyers

ORDERS

The application for judicial review filed 16 December 2015 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2788 of 2015

CSJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

This is an application for the judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 25 November 2015, affirming a decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a citizen of Sri Lanka who arrived in Australia as an Irregular Maritime Arrival on 22 July 2012 and participated in an entry interview on 27 September 2012 (CB 7-24).
On 12 December 2012, the Applicant applied for the visa and on 9 September 2013, the Applicant attended an interview with the Department of Immigration and Border Protection (“the Department”) (CB 128).
In a decision dated 14 October 2013, a delegate of the Minister refused to grant the Applicant the visa (CB 123-144).
On 16 October 2013, the Applicant, through his appointed migration agent, applied to the Tribunal for review of the delegate’s decision (CB 145-150).
On 12 December 2013, the Applicant’s migration agent provided written submissions to the Tribunal (CB 155-209).
On 1 September 2015, the Tribunal wrote to the Applicant, through his migration agent, inviting him to appear at a hearing before it scheduled for 21 September 2015 (CB 213-216).
On 21 September 2015, the Applicant appeared at a hearing before the Tribunal with the assistance of an interpreter in the Tamil and English languages and his appointed migration agent (CB 222-224).
Before turning to the Applicant’s claims to…

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: [2017] FCCA 781
Decision Date: 5 May 2017

CaseChat Overview and Summary

The applicant, CSJ15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CSJ15 a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the court was required to consider whether the delegate of the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when assessing CSJ15's application.

Judge Jones found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to CSJ15's eligibility for the visa. This failure constituted a jurisdictional error. The court reasoned that administrative decision-makers must consider all relevant information placed before them, and a failure to do so renders the decision invalid. The principle applied was that a failure to consider a mandatory relevant consideration is a jurisdictional error.

Consequently, the court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders