BAT16 v Minister for Immigration - [2017] FCCA 1135

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAT16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1135

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (Authority) – denial of natural justice – whether the Authority erred by failing to give to a referred applicant any material that was before the Minister – whether the Authority erred by failing to given the referred applicant a hearing or interview – no procedural error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AA, 5H(2), 13, 14, 36, 46A, 359A, 375A, 424A, 438, 473BB, 473CA, 473CC, 473DA, 473DB, 473DC, 473DE, 473GA, 473GB, 501, pt.5, pt.7, div.3 of pt.7AA

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.3, items 8 and 60 of sch.1
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), s.5(1) of sch.4

Cases cited:

BBS16 v Minister for Immigration & Border Protection (2017) 316 FLR 431; [2017] FCCA 4

BVM16 v Minister for Immigration & Border Protection [2016] FCCA 3183

DBA16 v Minister for Immigration & Border Protection [2017] FCCA 320

Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183

Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31

MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41

Plaintiff M96A/2016 v Commonwealth (2017) 91 ALJR 579; [2017] HCA 16
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

Applicant:

BAT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1098 of 2016

Judgment of:

Judge Smith

Hearing dates:

16 March & 11 May 2017

Date of Last Submission:

11 May 2017

Delivered at:

Sydney

Delivered on:

29 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Mr J. Pinder, Minter Ellison

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1098 of 2016

BAT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) made on the morning of 30 March 2016. The IAA affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claims that he was denied procedural fairness by the IAA. The scope of the obligation to afford procedural fairness depends upon the context in which the relevant action occurs and, more particularly, the statutory context. In this case, the decision of the IAA was made under s.473CC of the Migration Act 1958 (Cth) (Act). In order to determine the scope of the IAA’s obligation to afford procedural fairness and whether that obligation was complied with, it is necessary to address two matters: first,…

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: [2017] FCCA 1135
Decision Date: 29 September 2017

CaseChat Overview and Summary

The applicant, BAT16, sought judicial review of a decision made by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether the applicant would be a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection, thereby vitiating the decision-making process.

Judge Smith found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the real chance of future persecution should they be returned to their country of origin. The Court applied the principles established in *Kaur v Minister for Immigration and Ethnic Affairs* and *Minister for Immigration and Ethnic Affairs v Teoh*, emphasizing the obligation of decision-makers to consider all relevant evidence and to make findings of fact based on that evidence. The delegate's failure to engage with crucial aspects of the applicant's narrative amounted to a failure to exercise the power conferred by the *Migration Act* according to law.

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

Orders