BAK15 v Minister for Immigration - [2018] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAK15 v MINISTER FOR IMMIGRATION

[2018] FCCA 489

Catchwords:
MIGRATION – International Treaty Obligations Assessment – application for judicial review – alleged denial of procedural fairness – failure to put general country information about laws of Vietnam to applicant – issue raised by applicant’s own material – assessor’s conclusion obviously open on known material - application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 195A, 417

Cases cited:

Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901

Kioa v West (1985) 159 CLR 550
Hala v Minister for Justice [2015] FCAFC 13
SZBEL v Minister for Immigration (2006) 228 CLR 152
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
WAEE v Minister for Immigration (2003) 236 FCR 593

Applicant:

BAK15

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

DNG 34 of 2015

Judgment of:

Judge Young

Hearing date:

24 March 2017

Date of Last Submission:

24 March 2017

Delivered at:

Adelaide

Delivered on:

1 March 2018

REPRESENTATION

The Applicant:

In person by video link

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 15 June 2015 is dismissed.
The applicant is to pay the respondent’s costs in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNG 34 of 2015

BAK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of an officer of the Department of Immigration and Border Protection (the Department) who conducted an International Treaty Obligations Assessment (ITOA) in respect of the applicant. The ITOA was conducted following the inadvertent release by the Department of her personal details on the internet in February 2014 (the “data breach”).
The applicant is a citizen of Vietnam. She arrived at Christmas Island in June 2010. She made claims for protection that were assessed in 2011. A Refugee Status Assessment was undertaken on 11 January 2011. It was found that the applicant was not a refugee under the Convention Relating to the Status of Refugees 1951 (“Refugee Convention”). A review of that assessment was undertaken on 16 July 2011 by an Independent Merits Review with the same outcome. Following the data breach she was interviewed for the ITOA on 14 January 2015 and the ITOA was completed on 10 April 2015. The applicant did not raise the data breach during the ITOA and it has not been raised in this application for judicial review.
The claims raised by the applicant in the ITOA included that she was harassed and assaulted in Vietnam by local police as a result of her work making paper figurines at a temple or shrine dedicated to a village ancestor and as a result of participating in a demonstration against the alienation of land…

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: [2018] FCCA 489
Decision Date: 1 March 2018

CaseChat Overview and Summary

The applicant, BAK15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BAK15 a visa. The matter was heard by Judge Young in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account a mandatory consideration, namely the applicant's claims of protection.

Judge Young reasoned that the delegate's decision-making process did not adequately address the applicant's protection claims. The delegate's assessment, as evidenced in the written reasons, appeared to have overlooked or given insufficient weight to the specific details provided by BAK15 regarding their fear of persecution. The Court applied the principle that a failure to consider a mandatory consideration constitutes a jurisdictional error, rendering the decision invalid.

The Court found in favour of the applicant, quashing the Minister's decision and remitting the matter to the Minister for reconsideration according to law.

Orders