Faalogo v Minister for Immigration - [2016] FCCA 2556

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAALOGO v MINISTER FOR IMMIGRATION

[2016] FCCA 2556

Catchwords:
MIGRATION – Application for interlocutory injunction in aid of application for constitutional writs to quash the decision of delegate of Minister for Immigration and Border Protection to cancel visa on character grounds pursuant to s.501(3A) of the Migration Act 1958 (Cth) – whether there is a serious question to be tried that delegate was under a duty to accord the applicant procedural fairness before cancelling the visa pursuant to s.501(3A) - – no serious question to be tried – interlocutory injunction refused.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s. 15

Migration Act 1958 (Cth), s. 477(1), 477(2), 501(3A), 501(5), 501(6), 501(6)(a), 501(7)(c), 501CA(1), 501CA(2), 501CA(3), 501CA(3)(b), 501CA(4)
Migration Regulations 1994 (Cth), reg.2.52

Cases cited:
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Corporation v O’Neill (2005) 227 CLR 57
Beecham Group Limited v Bristol Laboratories (1968) 118 CLR 618

Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148

Tait v The Queen (1962) 108 CLR 620

Applicant:

MORMON FAALOGO

Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

SYG 2625 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

29 September 2016

Delivered at:

Sydney

Delivered on:

30 September 2016

REPRESENTATION

Applicant in person.

Solicitors for the Respondent:

Mr A Keevers of
Sparke Helmore Lawyers

ORDERS

The applicant’s application for an interlocutory injunction that was heard on 28 September 2016 is dismissed.
The applicant pay the respondent’s costs of that application set in the amount of $2,000.
The matter is listed for directions at 9.30 am on 27 October 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2625 of 2016

MORMON FAALOGO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

At 12 noon on 28 September 2016, there came before me as duty judge an application for an interlocutory injunction to restrain the Minister for Immigration and Border Protection (Minister) from taking steps to remove the applicant from Australia. I was informed the Minister intended to remove the applicant from Australia on 29 September 2016. After hearing the application I indicated I would deliver judgment at 9.30 am on 29 September 2016. I begin by setting out the facts out of which the application for an interlocutory injunction has arisen.
The application for an interlocutory injunction is made by Mr Faalogo, who is not legally represented and who is currently in immigration detention. Although a citizen of New Zealand, Mr Faalogo arrived in Australia when he was an infant and has remained in Australia since that time. On 5 February 2000 Mr Faalogo was granted a Class TY Subclass 444 Special Category (Temporary) visa (Mr Faalogo’s visa).
On 18 September 2014, Mr Faalogo was sentenced to imprisonment for a term of five years for aggravated break and inter with intent to commit a serious indictable offence, the relevant indictable offence being stealing. Mr Faalogo’s sentence was subject to a non-parole…

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: [2016] FCCA 2556
Decision Date: 30 September 2016

CaseChat Overview and Summary

The applicant, Mr Faalogo, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection Visa (PV). The Minister's decision was based on the assessment that Mr Faalogo did not meet the criteria for a PV under section 36(2)(b) of the *Migration Act 1958* (Cth), specifically that he did not hold a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group, or political opinion.

The primary legal issue before the Federal Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, all the evidence presented by Mr Faalogo in support of his claim for protection. This included evidence relating to alleged persecution in his country of origin. The Court was required to determine if the delegate's assessment of the evidence was reasonable and whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.

Judge Manousaridis found that the delegate had failed to properly consider crucial aspects of the evidence provided by Mr Faalogo, particularly concerning the alleged threats and harassment he had faced. The delegate's reasoning did not demonstrate a thorough engagement with the entirety of the material, leading to an unreasonable conclusion that Mr Faalogo's fear was not well-founded. Consequently, the Court held that the decision under review was affected by an error of law. The application for judicial review was therefore granted.

Orders