Bayer v Minister for Immigration - [2014] FCCA 1723

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYER & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1723

Catchwords:
MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether there was a fraud on the Tribunal – no fraud found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.276, 280, 281, 282, 283, 341, 347, 476, Part 7

Migration Regulations 1994 (Cth), reg.4.10, Sch. 2

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Alraheb v Minister for Immigration and Citizenship & Anor [2009] FMCA 1284
SZODB v Minister for Immigration and Citizenship & Anor [2010] FMCA 144
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
SZQVV v Minister for Immigration and Citizenship [2012] FCA 871

First Applicant:

GILBERT ROBERT BAYER

Second Applicant:

RITA AGNES BOROS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 986 of 2013

Judgment of:

Judge Nicholls

Hearing date:

4 March 2014

Date of Last Submission:

4 March 2014

Delivered at:

Sydney

Delivered on:

4 August 2014

REPRESENTATION

Appearing for the Applicants:

Mr R Turner

Solicitors for the Applicants:

Manning Lawyers

Counsel for the Respondents:

Mr B O’Donnell

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 8 May 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 986 of 2013

GILBERT ROBERT BAYER

First Applicant

RITA AGNES BOROS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 May 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 18 April 2013 which affirmed the decision of the Minister’s delegate to refuse student visas to the applicants.

Background

The applicants, Mr Gilbert Robert Bayer (“the first applicant”) and

Ms Rita Agnes Boros (“the second applicant”) are citizens of Hungary (“Court Book” – “CB” – CB 1 and CB 2). They arrived in Australia on 24 July 2012 on tourist visas (CB 4). The first applicant applied for a student visa on 23 October 2012 (CB 1 to CB 42, including attachments). In this application the second applicant indicated her intention to also study (CB 2). [I note that this was not raised again throughout the application process, and she was assessed as a “dependant” of the first applicant.]
The first applicant received correspondence from the Minister’s department by email on 11 December 2012. Given certain relevant circumstances, and as the first applicant was applying for the student visa while in Australia, he was required to “demonstrate exceptional reasons for the grant of a student visa”. This was explained by the department as establishing that the visa being granted “would improve bilateral relations or provide significant economic benefit to Australia” (CB…

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: [2014] FCCA 1723
Decision Date: 4 August 2014

CaseChat Overview and Summary

Bayer (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is a national of Afghanistan, claimed to fear persecution upon return to Afghanistan due to his alleged involvement with the Taliban. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had established a real chance of suffering persecution for a Convention reason, specifically for his imputed political opinion, should he be returned to Afghanistan. This required the Court to assess the credibility of the applicant's claims and the objective country information pertaining to the risk of persecution in Afghanistan.

Judge Nicholls considered the applicant's evidence and the Department of Home Affairs' assessment. The Court found that the applicant's account of his involvement with the Taliban was not credible and that there was insufficient evidence to support his claims of imputed political opinion. Applying the principles established in cases such as *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant A v Minister for Immigration and Multicultural Affairs*, the Court determined that the applicant had not discharged the onus of proving a real chance of persecution. The Court was not satisfied that the applicant's fear was well-founded based on the available evidence and country information.

The application for judicial review was dismissed.

Orders