XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, XTLP, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT), which had affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a Protection visa. The applicant, a Ghanaian national, arrived in Australia on a Child visa and has a history of criminal activity, including family violence. The AAT found that Australia has obligations to protect the applicant due to ongoing mental health concerns and likely persecution in Ghana, but nonetheless affirmed the delegate’s decision to refuse a Protection visa based on the considerations in Direction 90. The applicant argued that the AAT failed to properly consider evidence regarding the nature of the relationship between the applicant and his wife, and that this failure amounted to a jurisdictional error that was material to the outcome of the decision.

The court was required to determine whether the AAT’s decision was legally sound, specifically whether the AAT failed to consider relevant evidence and whether such failure amounted to jurisdictional error that was material to the outcome. The court also had to consider whether the AAT’s decision was in accordance with Direction 90, and whether the AAT properly exercised its discretion under section 501(1) of the Migration Act 1958 (Cth).

The court found that the AAT failed to properly consider evidence regarding the nature of the relationship between the applicant and his wife, specifically the evidence regarding an Apprehended Violence Order (AVO) taken out against the applicant by his wife in 2016. The applicant and his wife had given conflicting evidence regarding the circumstances of the AVO, and the AAT had not properly considered this evidence in its decision. The court found that this failure amounted to a jurisdictional error that was material to the outcome of the decision, as the AAT had not properly exercised its discretion under section 501(1) of the Migration Act. The court quashed the decision of the AAT and issued a writ of mandamus directing the AAT to review the decision of the delegate according to law. The court also ordered the Minister to pay the applicant’s costs of the proceeding.