Mohamed v Minister for Immigration - [2016] FCCA 3231

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMED v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3231

Catchwords:
MIGRATION – Child (Class AH) (Orphan Relative Subclass 117) visa – Tribunal’s failure to consider evidence of the son of the missing woman – failure to properly consider whether children were in fact “orphans” – failure to consider critical fact – jurisdictional error found – constitutional writs issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.14, cl.117 of Sch.2

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

HASSAN QASSIN MOHAMED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1427 of 2014

Judgment of:

Judge Wilson

Hearing date:

26 October 2016

Date of Last Submission:

26 October 2016

Delivered at:

Melbourne

Delivered on:

15 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr A. Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 20 January 2014.
An order in the nature of a writ of mandamus issue directing the

second respondent to hear and determine the application for review according to law.
The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1427 of 2014

HASSAN QASSIN MOHAMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issue in this case was whether the Tribunal’s failure to give active intellectual engagement to the evidence of the visa applicant’s nephew Ali Hussein Mohamed amounted to jurisdictional error.
The visa applicant Hassan Qassin Mohamed (“the applicant”) applied for a Child (Class AH) (Orphan Relative Subclass 117) visa for his nephews Ali and Omar Hussein Mohamed.[1] The applicant’s success in gaining such a visa depended on the delegate being satisfied that, among other things, Ali and Omar were in fact orphans. The delegate was not satisfied that Ali’s and Omar’s mother was dead, permanently incapacitated or of unknown whereabouts. In reaching that conclusion, the Tribunal reasoned –
a)the applicant gave inconsistent accounts as to how the mother came to be separated from Ali and Omar;
b)the applicant and Ali gave inconsistent evidence as to how Ali and Omar came to be cared for by their present carer;
c)there was no documentary or other objective evidence corroborating the claim that the mother was dead, permanently incapacitated or of an unknown whereabouts;
d)the inconsistencies were sufficiently serious as to render the applicant’s evidence unreliable; and
e)in the circumstances, there was no evidence on which the Tribunal could have relied to reach the required state…

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 3231
Decision Date: 15 December 2016

CaseChat Overview and Summary

Mohamed (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse his application for a protection visa. The applicant, who was of Sri Lankan origin, claimed to fear persecution in Sri Lanka due to his alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE). The Minister had refused the visa application on the grounds that the applicant was excluded from protection under s 48B of the *Migration Act 1958* (Cth) and that he did not meet the criteria for a protection visa under s 36 of the Act. The matter came before Judge Wilson in the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether the Minister's decision to refuse the protection visa was affected by jurisdictional error, and specifically, whether the Minister had properly considered the applicant's claims of persecution and whether the exclusion provisions under s 48B had been correctly applied. The Court was required to determine if the Minister's assessment of the evidence regarding the applicant's alleged involvement with the LTTE and the consequent risk of persecution was reasonable and in accordance with the relevant legislative provisions.

Judge Wilson found that the Minister had made a jurisdictional error in refusing the protection visa. The Court reasoned that the Minister had failed to adequately consider the applicant's evidence regarding his alleged past membership of the LTTE and the specific nature of the persecution he feared. Furthermore, the Court determined that the application of s 48B of the *Migration Act* was flawed, as the Minister had not properly established that the applicant fell within the exclusion provisions. The Court concluded that the Minister's decision was not based on a proper understanding of the facts or the law, and therefore, it was invalid.

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

Orders