Suleiman v Minister for Immigration and Border Protection

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.