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BAJ16 v Minister for Home Affairs

BAJ16 v Minister for Home Affairs

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Case Copied 13 June 2019 71 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJ16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1598

Catchwords:
MIGRATION – Protection visa – extension of time – first applicant a practising Sikh – profile as President of Bhangra group which promotes religious and cultural activities of Sikhs – Tribunal accepts that the first applicant has a well-founded fear of persecution throughout India – whether applicants can enter and reside in Nepal – Australia taken not to have protection obligations to a person who has not taken all possible steps to avail him or herself of a right to enter and reside in another country – whether exclusion from protection obligations qualified by sub-s 36(4) of Migration Act 1958 (Cth) – applicable principles – extension granted – whether Tribunal understood claim – whether claim properly considered – constructive failure to exercise jurisdiction – application allowed.

Legislation:

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.5H, 36, 65, 414, 415, 417, 424A, 424AA, 476A,

477

Migration Regulations 1994 (Cth), Sch.2 Pt.866

Cases cited:

ACR15 v Minister for Immigration [2015] FCCA 2992

AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358

AZAFJ v Minister for Immigration and Border Protection, [2016] FCA 291

Bayalkoti v Minister for Immigration and Border Protection [2017] FCA 217

BCI16 v Minister for Immigration and Border Protection [2018] FCA 851

BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

CRI026 v Republic of Nauru, (2018) 355 ALR 216

CRI028 v Republic of Nauru (2018) 356 ALR 50

CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354

DMI16 v Minister for Immigration and Border Protection [2018] FCAFC 95

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

Frugtniet v Australian Securities and Investment Commission [2019] HCA 16

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Januzi v Secretary of State for the Home Department [2006] 2 AC 426

Kio v Minister for Home Affairs [2019] FCA 579

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013]

FCAFC 91

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518

Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1598
Decision Date: 13 June 2019

CaseChat Overview and Summary

The applicant, BAJ16, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The dispute centred on whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the Migration Act 1958 (Cth). The matter was heard in the Federal Court of Australia before Judge A Kelly.

The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims, specifically concerning the credibility of the applicant's account and the objective reasonableness of a fear of persecution. The Court was required to determine if the delegate had properly considered all relevant evidence and applied the correct legal principles in assessing the risk of harm to the applicant should they be returned to their country of origin.

Judge A Kelly found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly regarding the alleged persecution. The Court applied the principles established in cases concerning the assessment of protection claims, emphasising the need for a holistic and balanced consideration of all available information. The delegate's assessment was found to be flawed due to an insufficient engagement with the applicant's subjective fear and the objective circumstances presented. Consequently, the Court quashed the delegate's decision and remitted the application for reconsideration according to law.

Orders