RLXN v Minister for Immigration, Citizenship and Multicultural Affairs

1. A writ of certiorari be issued quashing the decision of the second respondent dated 4 July 2022 (Tribunal File No. 2022/3036).
2. A writ of mandamus directed to the second respondent be issued requiring it to determine the application for review made on 13 April 2022 according to law.
3. The first respondent to pay the applicant's costs fixed in the amount of $12,221.19. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 In this proceeding the applicant, RLXN, seeks judicial review pursuant to s 476A of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister, pursuant to s 501CA(4)(b)(ii) of the Act, not to revoke the mandatory cancellation of the applicant's visa. The parties have promoted, by consent, orders that a writ of certiorari be issued quashing the decision of the Tribunal dated 4 July 2022 and a writ of mandamus directed to the Tribunal be issued requiring it to review the delegate's decision according to law. 2 As Colvin J explained in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[5], even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is an error. There is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FLR 323 at 327-328 [12] (French J). 3 The applicant's complaint in this proceeding is that the Tribunal fell into error in assessing the weight to be given in favour of revocation based on the impediments the applicant would face if he were to be returned to Lebanon by reason of his mental health condition, and his risk of being physically harmed by gangs in Lebanon as a returnee from a western country. 4 The parties have jointly submitted that the Tribunal's decision dated 4 July 2022 is affected by jurisdictional error. Specifically they submit that the Tribunal erred in its assessment of the risk of violence to the applicant in Lebanon as a western returnee as relevant to the 'extent of impediments if removed' consideration at clause 9.2 of Direction No. 90 in the following circumstances: (a) in setting out its understanding of the applicant's claims to engage non-refoulement obligations as relevant to the 'international non-refoulement obligations' consideration at clause 9.1 of Direction No. 90, the Tribunal characterised one of the applicant's claims as follows: "[t]he applicant fears being targeted by gangs in Lebanon [']… because they can either see or hear that I have been living in a Western country.[']" (at [229(h)] of the Tribunal's reasons); however (b) in assessing the danger posed by gangs in Lebanon as relevant to the 'extent of impediments if removed' consideration at clause 9.2 of Direction No. 90, the Tribunal found that "[h]arm resulting from [the gangs'] infliction of violence could also impede the applicant's capacity to maintain basic living standards…" (at [242] of the Tribunal's reasons); however the Tribunal concluded that this circumstance was "not [one] that would affect the applicant uniquely or affect him as a member of some minority group." (at [243] of the Tribunals' reasons); and (c) in so finding, the Tribunal failed to consider the applicant's claim to fear harm from gangs as a western returnee as relevant to the extent of 'impediments if removed consideration' at clause 9.2 of Direction No. 90, and committed a jurisdictional error of the type described in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at 681 [183]-[188] (Robertson J). 5 Thus the parties jointly submit that it is appropriate for the Court to make the orders that have been agreed quashing the decision of the Tribunal and requiring the review to be determined according to law. 6 The Court notes the concessions made by the Minister that these joint submissions represent. Further, the Court is satisfied, for the reasons identified by the parties and set out above, that there has been jurisdictional error on the part of the Tribunal and that the application should be granted. 7 It follows that there will be orders substantially in the terms proposed by the parties, including that the first respondent will pay the applicant's costs agreed in the sum of $12,221.19. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.