Cuh20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application for judicial review brought by CUH20 against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the Administrative Appeals Tribunal. The applicant sought to quash a decision of the Tribunal dated 19 May 2020, which affirmed a delegate's decision to refuse his application for a Protection (subclass 866) visa. The applicant, a citizen of Zimbabwe, had claimed he could not return to his home country due to political violence and his association with the opposition party.

The central legal issue before the Court was whether the Administrative Appeals Tribunal had fallen into jurisdictional error in its decision to affirm the refusal of the applicant's protection visa. Specifically, the Court was required to determine if the Tribunal had failed to consider relevant material or had otherwise acted outside its legal authority in its assessment of the applicant's claims, particularly concerning his ability to enter and reside in a third country, Uganda.

Kendall J found that the Tribunal had indeed fallen into jurisdictional error. While the Tribunal correctly identified the relevant legislative provisions, including sections 36(3)-(5A) of the Migration Act 1958 (Cth) concerning third country protection, and considered country information regarding regional agreements, it failed to adequately consider all the material before it. The Court noted that the Tribunal's invitation to the applicant to comment on information regarding third country protection, while technically compliant with procedural requirements, was framed in a way that did not elicit a meaningful response on that specific issue. Crucially, the Tribunal's finding that the applicant had a "right to enter and reside in" Uganda, based on regional agreements, and its subsequent conclusion that Australia therefore had no protection obligations, overlooked the need to fully engage with the applicant's specific circumstances and the evidence he presented regarding his fear of returning to Zimbabwe.

Consequently, the Court ordered that a writ of certiorari issue to quash the Tribunal's decision of 19 May 2020. Furthermore, a writ of mandamus was issued, remitting the matter to the Administrative Appeals Tribunal for reconsideration and determination by a differently constituted member, according to law. The first respondent was ordered to pay the applicant's costs.