Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
File number:
WAD 547 of 2017
Judge:
COLVIN J
Date of judgment:
2 May 2018
Catchwords:
MIGRATION - application to review decision of Administrative Appeals Tribunal - original decision by delegate of Minster not to revoke mandatory cancellation of visa under s 501CA - whether jurisdictional error in Tribunal treating some considerations under Direction 65 as secondary considerations - whether a direction under s 499 could require some considerations to be treated as secondary considerations in all cases - jurisdictional error found - whether a suppression order should be made
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
52
Counsel for the Applicant:
The Applicant appeared in person
Counsel for the First Respondent:
Ms SJ Oliver
Solicitor for the First Respondent:
Sparke Helmore Lawyers
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice
Table of Corrections
29 June 2018
In the last sentence in paragraph 48 the word 'was' has been deleted.
29 June 2018
In paragraph 7(8) a quotation mark has been added before 'it'.
ORDERS
WAD 547 of 2017
BETWEEN:
RASHID ALI SULEIMAN
Applicant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
2 MAY 2018
THE COURT ORDERS THAT:
1.The name of the applicant be amended to Rashid Ali Suleiman.
2.The time within which the application may be brought be extended so as to allow the application to be heard.
3.The decision of the Administrative Appeals Tribunal dated 22 September 2017 be set aside and the matter be remitted to the Tribunal for reconsideration according to law.
4.The first respondent do pay the applicant's costs of the application excluding the costs of the application for an extension of time to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Mr Suleiman arrived in Australia…
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 Suleiman v Minister for Immigration and Border Protection
Sign in free to access the full text
Details
AGLC
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Case
[2018] FCA 594
Decision Date
CaseChat Overview and Summary
The case of Suleiman v Minister for Immigration and Border Protection involved an application to review a decision of the Administrative Appeals Tribunal (AAT) by Rashid Ali Suleiman, who challenged the Minister for Immigration and Border Protection's refusal to revoke the mandatory cancellation of his visa under section 501CA of the Migration Act 1958 (Cth). The applicant contended that the AAT erred in treating some considerations under Direction 65 as secondary considerations and in applying a direction under section 499 to require those considerations to be treated as secondary in all cases. The court was required to determine whether the AAT had made a jurisdictional error by treating some considerations as secondary and whether a direction under section 499 could require certain considerations to be treated as secondary in all cases.
The Federal Court found that the AAT had made a jurisdictional error by treating some considerations as secondary. The court reasoned that the AAT's approach to Direction 65 and the decision in BCR16 v Minister for Immigration and Border Protection was flawed. The AAT had initially not considered the applicant's claims of harm if returned to his country of nationality because it was open to the applicant to advance those claims in an application for a protection visa. However, the decision in BCR16 required the AAT to assess any type of harm that might arise if the applicant were deported to his country of nationality. Despite considering the risk of harm, the AAT ultimately treated the risk of harm as a consideration of secondary importance and concluded it was outweighed by the primary considerations under Direction 65. The court found that Direction 65 could not operate in a manner that would cause the decision-maker to act inconsistently with the requirements of section 501CA(4) as determined by a Full Court in BCR16.
The court set aside the decision of the AAT and remitted the matter for reconsideration according to law. The court also ordered that the applicant's name be amended to Rashid Ali Suleiman, extended the time within which the application could be brought, and directed the Minister to pay the applicant's costs of the application, excluding the costs of the application for an extension of time to be assessed if not agreed.
Orders
Orders of the court
1. The name of the applicant be amended to Rashid Ali Suleiman.
2. The time within which the application may be brought be extended so as to allow the application to be heard.
3. The decision of the Administrative Appeals Tribunal dated 22 September 2017 be set aside and the matter be remitted to the Tribunal for reconsideration according to law.
4. The first respondent do pay the applicant's costs of the application excluding the costs of the application for an extension of time to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Also, for the following reasons, Direction 65 could not operate in a manner that would cause the 'body' entrusted with the making of a decision under s 501CA(4) in any particular case, to act inconsistently with the requirement of that provision as determined by a Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456.The Tribunal's approach to the decision in BCR16 After referring to Direction 65 and noting that the applicant was entitled to apply for a protection visa, the Tribunal said at [93]:Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non‑refoulement obligations owed to [the applicant]. It was generally accepted that because Direction 65 specifically states that it is not necessary to determine a non‑refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non‑refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim. The Tribunal then stated '[t]hat position is now disputed' because of the recent decision of a Full Court of this Court in BCR16. The Tribunal stated that because of the decision in BCR16 it 'is required to assess any type of harm that might arise should [the applicant] be deported [to his place of nationality]': at [94] (original emphasis). Three matters arise from the Tribunal's approach to Direction 65 and the decision in BCR16. First, it is apparent that but for the decision in BCR16 the Tribunal would have followed the terms of Direction 65 and would have concluded that it was unnecessary to determine the applicant's claims of harm if returned to his country of nationality because it was open to the applicant to advance those claims in an application for a protection visa. Second, the Tribunal considered that it was required by BCR16 to assess any type of harm that might arise should the applicant be deported to his country of nationality. Third, although it considered the risk of harm to the applicant, in the end it used the terms of Direction 65 to conclude that the risk of harm was a consideration of secondary importance and was outweighed by the primary considerations under Direction 65. One aspect of the reasoning by the majority (Bromberg and Mortimer JJ) in BCR16 was the recognition that an application for a protection visa may be rejected without a consideration of non‑refoulement obligations, particularly on character grounds: at [36]-[46], [52]. This means that such matters would not necessarily be considered as part of dealing with an application for a protection visa. A further aspect was a recognition of the 'qualitatively different exercise' that is undertaken in considering whether to grant a protection visa (s 65) compared to whether to revoke a decision to cancel a visa after receiving representations raising reasons why that should occur (s 501CA(4)): at [49].