El Ossman v Minister for Immigration - [2017] FCCA 433

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL OSSMAN v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 433

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider the best interests of the child as a primary consideration – whether the Administrative Appeals Tribunal erred in failing to consider the interest of the applicant’s child as an Australian citizen – whether the Administrative Appeals Tribunal failed to give proper, genuine and realistic consideration to the child’s best interest – whether the Administrative Appeals Tribunal failed to exercise its discretion under section 116(g) of the Migration Act 1958 (Cth) in a proper, genuine and realistic way – whether the Administrative Appeals Tribunal erred in failing to make an obvious inquiry about a critical fact – whether the Administrative Appeals Tribunal erred by failing to assess, investigate or determine the merits of or the reasons for the Adverse Security Assessment – no jurisdictional error – application dismissed.

Legislation:
Administrative Appeal Tribunal Act 1975 (Cth), s.43
Australian Security Intelligence Organisations Act 1979 (Cth), s.4
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 338, 357A, 359A, 359AA, 360, 375, 474
Migration Regulations 1994 (Cth), reg.2.43

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 321 ALR 592
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant:

MUSTAPHA EL OSSMAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1539 of 2016

Judgment of:

Judge Emmett

Hearing date:

27 February 2017

Date of Last Submission:

27 February 2017

Delivered at:

Sydney

Delivered on:

14 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Jocelyn Williams

Solicitors for the Applicant:

SBA Lawyers

Counsel for the Respondents:

Mr Patrick Knowles

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1539 of 2016

MUSTAPHA EL OSSMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 May 2016 (“the Tribunal”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

The applicant first arrived in Australia in 2011 to visit family members. He subsequently returned to Australia for another visit in 2013.
On 8 June 2013, the applicant was granted a Subclass 300 Prospective Marriage visa by the Department of Immigration and Citizenship…

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.

Keep reading for free

Create a free CaseChat account to read El Ossman v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 433
Decision Date: 14 March 2017

CaseChat Overview and Summary

In *El Ossman v Minister for Immigration*, Emmett J of the Federal Court of Australia considered an application for judicial review concerning the Minister's decision to refuse to grant the applicant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in his country of origin. The Minister had refused the protection visa application on the basis that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection, thereby vitiating the decision-making process.

Emmett J reasoned that the delegate's assessment of the applicant's claims had been flawed. The delegate had failed to adequately consider the applicant's evidence regarding his fear of persecution, particularly in relation to specific threats and the potential for harm he faced. The Court applied the principles of administrative law, holding that a decision-maker must genuinely consider all relevant evidence and submissions put before them. A failure to do so constitutes a jurisdictional error. The Court found that the delegate had not undertaken a proper assessment of the applicant's claims, leading to an erroneous refusal of the protection visa.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders