CUL16 v Minister for Immigration - [2018] FCCA 1448

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUL16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1448

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether the Authority failed to exercise jurisdiction – reasonableness of relocation – submissions on relocation provided to Authority– whether Authority considered integers of claim – claim to well-founded belief of real risk of significant harm – criminal violence – personal circumstances – disability – no case arose clearly on the facts – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA,36(2)(aa), 36(2B)(c), 46A(1), 473CC, 473DC

Migration Regulations 1994 (Cth) regs. 4.43, 4.43(2)(d)

Cases cited:

Applicant:

CUL16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2635 of 2016

Judgment of:

Judge McNab

Hearing date:

28 September 2017

Date of Last Submission:

28 September 2017

Delivered at:

Melbourne

Delivered on:

7 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Bardo Lawyers

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed 4 September 2017 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $8105.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 2635 of 2016

CUL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of a further amended application filed 4 September 2017, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 1 September 2016 that affirmed a decision of the delegate of the First Respondent to refuse to grant the Applicant a Protection visa.
The grounds of review are as follows:
1.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to exercise its jurisdiction and/or acted unreasonably.
Particulars
(a) The Authority failed to consider the exercise of its discretion under s.473DC(3) of the Migration Act to invite the Applicant to make submissions to it on the question of his relocation within Lebanon, an issue not decided by the delegate;
(b) The Authority failed to consider the exercise of its discretion under s.473CC(2)(b) of the Migration Act to remit the matter to the delegate for the issue of relocation to be determined at first instance;
(c) The failure to exercise the discretion was unreasonable.
2. The decision of the Independent Assessment…

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 1448
Decision Date: 7 June 2018

CaseChat Overview and Summary

The applicant, CUL16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant CUL16 a visa. The matter came before Judge McNab in the Federal Circuit and Family Court of Australia.

The central 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 CUL16's application.

Judge McNab reasoned that the delegate's assessment of CUL16's character relied on information that was not properly before them at the time of the decision. The Court found that the delegate had failed to afford CUL16 procedural fairness by not providing an opportunity to respond to adverse information that was ultimately relied upon in the refusal. This failure constituted a jurisdictional error.

Consequently, Judge McNab set aside the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders