BAQ15 v Minister for Immigration - [2016] FCCA 899

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAQ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 899

Catchwords:
MIGRATION – Considerations regarding award of costs less than as set out in Schedule to Rules of Court – factors relevant to exercise of Court’s discretion.

Legislation:

Federal Circuit Court of Australia Act 1999, s.79(1) & (3)

Federal Circuit Court Rules 2001, r.21.02(2), 44.15(1)

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Cachia v Hanes (1994) 179 CLR 403
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864
Eat Media Pty Ltd v Mulready Media Pty Ltd (No.2) (2010) 267 ALR 573
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Ginos Engineering Pty Ltd v Autodesk Pty Ltd (2008) 249 ALR 371
Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR ¶40-748
Latoudis v Casey (1990) 170 CLR 534
Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412
Noble & Baldwin (No.2) [2011] FMCA 700
Oshlack v Richmond River Council (1998) 193 CLR 72
Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No.2) [2010] FCA 455
SZRTP v Minister for Immigration & Border Protection (2013) 277 FLR 469

Applicant:

BAQ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 41 of 2015

Judgment of:

Judge Neville

Hearing date:

27 October 2015

Date of Last Submission:

27 October 2015

Delivered at:

Canberra

Delivered on:

27 October 2015

Written reasons provided on:

22 April 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Self represented

Counsel for the Respondents:

Mr Bird

Solicitors for the Respondents:

Clayton Utz, Canberra

ORDERS

The Application filed 16 June 2015 be dismissed.
The Applicant is to pay the Respondent’s costs in the amount of $1500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 41 of 2015

BAQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 27^th October 2015, the Court heard, and determined adversely to the Applicant (from the People’s Republic of China), an Application that sought (among other things) to quash a decision of the then Refugee Review Tribunal, made on 14^th May 2015.
In short compass, the Court accepted, and in large measure adopted as the Court’s reasons, the submissions provided by the First Respondent Minister (“the Minister”).
Upon delivering oral reasons in relation to the [substantive] Application to Review, the Court also made an Order for costs in favour of the Minister. The amount was fixed in the sum of $1500.00.
On 6^th November 2015, the Court received a request for written reasons specifically and solely in relation to the Order regarding costs. As important as reasons for…

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.

Keep reading for free

Create a free CaseChat account to read BAQ15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 899
Decision Date: 27 October 2015

CaseChat Overview and Summary

The applicant, BAQ15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia on 15 March 2014, claimed to be a citizen of Afghanistan and alleged that he feared persecution if returned to his country of origin. The Minister's delegate had refused the protection visa application on 10 March 2015, a decision that was affirmed by the Refugee Review Tribunal (RRT) on 28 August 2015. The applicant then sought review of the RRT's decision in the Federal Circuit Court.

The primary legal issue before Judge Neville was whether the RRT had erred in its assessment of the applicant's claims regarding his ethnicity and the risk of persecution he faced in Afghanistan. Specifically, the court was required to consider whether the RRT had adequately considered the evidence presented by the applicant concerning his Hazara ethnicity and the general country information relating to the persecution of Hazaras in Afghanistan. The court also had to determine if the RRT had properly applied the relevant legal tests for assessing claims of persecution under the Migration Act 1958 (Cth).

Judge Neville found that the RRT had failed to adequately consider the evidence relating to the applicant's ethnicity and the specific risks faced by Hazaras in Afghanistan. The RRT's decision was found to be based on a misunderstanding of the country information and an insufficient engagement with the applicant's personal circumstances. The court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper, rational, and logical assessment of the evidence.

The court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders