BAQ16 v Minister for Immigration - [2018] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAQ16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1736

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – no jurisdiction to review the Minister’s delegate’s decision – whether the Tribunal erred in finding that the applicant was not a victim of political persecution – whether the Tribunal failed to provide procedural fairness – credibility finding – no jurisdictional error revealed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.476

Cases cited:
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 247 ALR 467
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1

Applicant:

BAQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1093 of 2016

Judgment of:

Judge Nicholls

Hearing date:

7 May 2018

Date of Last Submission:

7 May 2018

Delivered at:

Sydney

Delivered on:

7 May 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mr M Gao of Australian Government Solicitor

ORDERS

The application made on 4 May 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1093 of 2016

BAQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), filed on 4 May 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which on 6 April 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant also sought that his affidavit made on 30 November 2016 be read into evidence. In essence, the affidavit sought to put before the Court certain documents, these being letters from the Secretary of the Bangladesh Nationalist Party (“BNP”) in Australia, and translations of other documents containing information about the BNP committee in Bangladesh.
The Minister objected to the affidavit, and its annexure, being read into evidence on the basis of relevance. I agreed with the Minister’s…

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 1736
Decision Date: 7 May 2018

CaseChat Overview and Summary

The applicant, BAQ16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a national of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinion. The Minister's delegate had refused the visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was asked to consider whether the delegate had failed to properly consider the applicant's claims of persecution, had made findings of fact that were not supported by evidence, or had otherwise acted outside their legal powers. The applicant argued that the delegate had not adequately assessed the evidence presented, including country information and personal testimony, and had applied an incorrect standard of proof.

Judge Nicholls found that the delegate had made a jurisdictional error in assessing the applicant's claims. The Court determined that the delegate had failed to adequately consider significant portions of the evidence, particularly regarding the applicant's ethnicity and the political situation in Afghanistan. The delegate's adverse credibility findings were found to be based on an incomplete and therefore flawed assessment of the evidence. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair evaluation of all relevant material before making a determination.

Consequently, the Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders