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Santos v Minister for Immigration

Santos v Minister for Immigration

Case [2017] FCCA 2276 19 September 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTOS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2276

Catchwords:
MIGRATION – Application for the Minister to consider exercising the power under s.351 – Departmental decision of whether to refer a s.351 request to the Minister is not a reviewable decision – due to statutory power of s.351 the applicant does not have a right, interest or legitimate expectation that engages this Court’s jurisdiction – the Court has no jurisdiction – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 474, 476

Commonwealth of Australia Constitution Act, s.75(v)

Cases cited:

AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29
Plaintiff S10/2011 v Ministerfor Immigration and Citizenship and Anor [2012] HCA 31
Raikua v Minister for Immigrationand Multicultural and Indigenous Affairs [2007] FCA 370

Applicant:

LARISSA FRANCA ALFAFIM SANTOS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ELIZABETH GRADY
DIRECTOR MINISTERIAL INTERVENTION (NATIONAL)

File Number:

SYG 856 of 2017

Judgment of:

Judge Street

Hearing date:

19 September 2017

Date of Last Submission:

19 September 2017

Delivered at:

Sydney

Delivered on:

19 September 2017

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner
Turner Coulson Immigration

Solicitors for the Respondents:

Mr K Eskerie
Sparke Helmore

ORDERS

Grant leave to the applicant to file in Court the amended application joining the named second respondent.
Direct that an electronic copy of the amended application be filed on or before 21 September 2017.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 856 of 2017

LARISSA FRANCA ALFAFIM SANTOS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ELIZABETH GRADY

DIRECTOR MINISTERIAL INTERVENTION (NATIONAL)

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ allegedly within this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), seeking mandamus to require the second respondent to refer the applicant’s application for the Minister to consider exercising the power under s.351 of the Migration Act to the Minister.
The applicant is a citizen of Brazil and arrived on 4 March 2010 on an Independent ELICOS Sector (subclass 570) visa. The applicant applied for a Partner (subclass 820/801) visa on 14 November 2013, granted on 18 November 2014. A Partner (Provisional) (subclass 820) visa was granted on 18 November 2014. On 15 January 2016, a Partner (Permanent) (subclass 801) visa was refused.
On 24 January 2017, the Tribunal affirmed that adverse decision by the delegate. On 17 February 2017, the applicant through her highly experienced and competent legal representative, made a request for the exercise of power under s.351 of the Migration Act by the Minister.

Before this Court

The grounds in the amended application are as follows:-
1. The Second Respondent lacked the authority to make the decision.
2. The Decision was based on an error in determining a jurisdiction…

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.

Continue reading Santos v Minister for Immigration

Details

AGLC: Santos v Minister for Immigration [2017] FCCA 2276
Case: [2017] FCCA 2276
Decision Date: 19 September 2017

CaseChat Overview and Summary

Santos (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, a citizen of Iran, claimed to have been persecuted in his home country due to his political opinions and his membership in a particular ethnic group. The Minister had refused the visa on the grounds that the applicant's claims were not credible and that he did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The matter came before Judge Street in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by an error of law. Specifically, the Court was asked to consider whether the delegate of the Minister had failed to properly consider all the evidence before them, including the applicant's personal circumstances and the country information relating to Iran. The applicant also argued that the delegate had applied an incorrect legal test when assessing the credibility of his claims.

Judge Street found that the delegate had failed to adequately consider the applicant's evidence regarding his political activities and the persecution he alleged to have suffered. The Court held that the delegate had placed undue emphasis on certain aspects of the country information while downplaying other relevant material. Furthermore, the Court determined that the delegate had applied an overly stringent test for credibility, which was not supported by the Migration Act or relevant case law. The principles of administrative law, including the duty to provide procedural fairness and the requirement for a decision to be based on relevant considerations, were central to the Court's reasoning.

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

Orders