Eln20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In this case, the appellant, who was born in South Vietnam in 1973, is challenging the decision of the Administrative Appeals Tribunal (the Tribunal) to dismiss his application for judicial review of a decision to refuse to grant him a Protection (subclass 866) visa. The Tribunal had found that the appellant was not stateless but a citizen of the Socialist Republic of Vietnam. The central legal issues in this appeal are whether the Tribunal acted unreasonably in its consideration of Vietnamese local laws to find that the appellant was not stateless and whether such error was jurisdictional.

The court held that the Tribunal's reliance on Article 15 of the 2008 Nationality Law was an error of fact as it failed to consider the words "at the time of his/her birth." This error, being of the content and application of foreign law, was an error of fact. However, this feature did not render the decision immune from judicial review on the ground of jurisdictional error. The court concluded that the Tribunal's application of Article 15 caused it to conclude that the appellant was a citizen of the Socialist Republic of Vietnam and not stateless. This finding could be impugned as illogical, irrational, or unreasonable in the legal sense required to establish jurisdictional error. Therefore, the Tribunal fell into jurisdictional error by making such a finding, including by determining whether the Tribunal's error was material to its ultimate decision not to grant the appellant a protection visa.

The court allowed the appeal and set aside the orders of the Federal Circuit Court of Australia made on 19 March 2021. In lieu thereof, it ordered that a writ of certiorari issue quashing the decision of the second respondent made on 9 September 2020 in case number 2007690, a writ of mandamus issue directing the second respondent to rehear and determine the applicant's application for review according to law, and the first respondent pay the applicant's costs of the application to the court. The first respondent also had to pay the appellant's costs of the appeal.