Bav16 v Minister for Immigration - [2018] FCCA 1112

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAV16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1112

Catchwords:
MIGRATION – Unparticularised grounds of review – application amounts to improper merits review – the Applicant’s Father has lived untroubled in Sri Lanka for a significant number of years and the Applicant is somewhat further removed from any possible risk of harm due to family history – no error established in very comprehensive reasons given by the Tribunal – Application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65, 425

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

CZBQ v Minister for Immigration and Border Protection [2015] FCA 526

Minister for Immigration and Border Protection v CZBQ & Anor [2015] HCASL 229
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; (2016) 343 ALR 97; [2016] FCAFC 183

Applicant:

BAV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 31 of 2016

Judgment of:

Judge Neville

Hearing date:

28 September 2016

Date of Last Submission:

31 August 2017

Delivered at:

Canberra

Delivered on:

18 May 2018

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondents:

Clayton Utz

ON A FINAL BASIS, THE COURT ORDERS THAT:

The Application filed on 5 May 2016 by the Applicant be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 31 of 2016

BAV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 7^th April 2016. This was the second time the Tribunal had declined to interfere with the decision of a delegate of the Minister in relation to this Applicant, who is a 24 year old citizen of Sri Lanka, to decline to grant him a protection (Class XA) visa pursuant to s.65 of the Migration Act1958 (Cth) (“the Act”).
The Applicant seeks an Order that the Tribunal's decision be quashed. The Minister submits that the Application should be dismissed with costs because the decision discloses no jurisdictional error, and is otherwise properly characterised as a privative clause decision for the purposes of s.474 of the Act.
As recounted in the decision of the Full Court of the Federal Court of Australia when the matter was on appeal from a decision of this Court (differently constituted), Collier J (sitting alone as the Full Court) noted the following general undisputed background of the Applicant, at [2] – [3]:[1]
[2] The appellant is a citizen of Sri Lanka, and is of the Tamil ethnicity. In February 2012, the appellant was assisted by smugglers to flee Sri Lanka and come to Australia. He arrived in Australia by boat on approximately 17 February 2012…

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 1112
Decision Date: 18 May 2018

CaseChat Overview and Summary

The applicant, Bav16, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection based on a fear of persecution in their country of origin. The matter came before Neville J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims for protection, particularly in light of the evidence presented and the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). This involved determining if the delegate's findings of fact were reasonably open to them on the evidence and if the delegate had correctly applied the legal tests for establishing a well-founded fear of persecution.

Neville J found that the delegate had failed to adequately assess certain aspects of the applicant's claims, specifically concerning the risk of harm from non-state actors and the availability of effective protection from the authorities in the applicant's country of origin. 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 relevant evidence and the application of the correct legal standard for establishing a well-founded fear. The delegate's decision was found to be affected by jurisdictional error due to this failure in assessment.

The Court made orders setting aside the decision of the Minister and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders