MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291

MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291

Direction No. 90 para 9.1(6) permits a decision-maker to assume that claimed harm will occur for the purpose of making a decision under s 501 or s 501CA, but it does not permit or require an assumption that non-refoulement or protection obligations are owed. Although the Tribunal failed to turn its mind to whether the applicant's case was an appropriate case to assume that the claimed harm would occur, that failure was not material because the Tribunal made an actual finding that the applicant's concerns as to serious harm if removed to South Sudan weighed heavily in favour of revocation.

Jurisdiction
Australia
Judgment Date
03 April 2023
Procedural Posture
Migration Application for Judicial Review of Administrative Appeals Tribunal Decision / Final Judgment on Application for Judicial Review
Outcome
Application dismissed.
Legal Topics
['visa Cancellation' 'revocation of Mandatory Visa Cancellation' 'jurisdictional Error' 'ministerial Direction No. 90' 'international Non Refoulement Obligations' 'materiality']
['migration Law' 'administrative Law'] ['visa Cancellation' 'revocation of Mandatory Visa Cancellation' 'jurisdictional Error' 'ministerial Direction No. 90' 'international Non Refoulement Obligations' 'materiality']

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Procedural Posture

Migration Application for Judicial Review of Administrative Appeals Tribunal Decision / Final Judgment on Application for Judicial Review

Legal Issues

  1. 1 ["Whether the Tribunal misapplied or misconstrued Direction No. 90 para 9.1(6) by treating 'claimed harm' as factual harm rather than harm giving rise to a non-refoulement obligation." 'Whether Direction No. 90 para 9.1(6) permitted or required the Tribunal to assume that non-refoulement obligations were owed to the applicant.' 'Whether any failure by the Tribunal to consider making an assumption about claimed harm was material.']

Ratio Decidendi

Direction No. 90 para 9.1(6) permits a decision-maker to assume that claimed harm will occur for the purpose of making a decision under s 501 or s 501CA, but it does not permit or require an assumption that non-refoulement or protection obligations are owed. Although the Tribunal failed to turn its mind to whether the applicant's case was an appropriate case to assume that the claimed harm would occur, that failure was not material because the Tribunal made an actual finding that the applicant's concerns as to serious harm if removed to South Sudan weighed heavily in favour of revocation.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicant do pay the first respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed."]