XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646

FEDERAL COURT OF AUSTRALIA

XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646 Review of: XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357

File number: NSD 854 of 2021

Judgment of: STEWART J

Date of judgment: 2 June 2022

Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister to refuse to grant a Protection visa on the ground that the applicant failed the character test – s 501(1) of the Migration Act 1958 (Cth) – where applicant arrived in Australia from Ghana on a Child visa – where the applicant has a lengthy criminal history in Australia including family violence – where an earlier Tribunal decision found that Australia has protection obligations with respect to the applicant due to likely persecution in Ghana due to ongoing mental health concerns – where the Tribunal decided that the weight of the considerations in Direction 90 were in favour of refusing a Protection visa – whether the Tribunal failed to consider relevant evidence regarding the nature of the relationship between the applicant and his wife – whether failure to consider relevant evidence amounted to jurisdictional error – whether error was material to outcome – application successful – Tribunal decision quashed

Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 476A, 501, 501CA(4)

Cases cited: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17