BAZ15 v Minister for Immigration - [2016] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAZ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1929

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s decision was unreasonable or irrational – whether the Tribunal failed to give the applicant an opportunity to present evidence – alleged bias – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476.

Applicant:

BAZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1633 of 2015

Judgment of:

Judge Street

Hearing date:

27 July 2016

Date of Last Submission:

27 July 2016

Delivered at:

Sydney

Delivered on:

27 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the First Respondent:

Mr B Kaplan

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,767.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1633 of 2015

BAZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 May 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.
The applicant unlawfully entered Australia on 10 August 2012 as an irregular maritime arrival. The applicant applied for a protection visa on 18 January 2013. The applicant was of Tamil ethnicity. In summary, the applicant fears persecution on the grounds of his Tamil ethnicity, an imputed political opinion as a supporter of the LTTE, and his membership of a social group of men who assisted the LTTE, as well as a Tamil from a particular area and a Tamil who is a failed asylum-seeker. The applicant identified particular alleged incidents.
The delegate found that there were credibility issues in relation to the applicant’s evidence and did not accept that the applicant was of interest to the authorities because of his missing niece nor suspected as an LTTE supporter. The delegate did not accept that the applicant faced problems from authorities while he was in Sri Lanka for any of the Refugee Convention reasons. The delegate did not accept the applicant’s claims that he was of interest to the authorities. The delegate found that the applicant did not have a well-founded fear of persecution. The delegate was not satisfied that Australia had protection obligations to the applicant because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there would be a real…

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: [2016] FCCA 1929
Decision Date: 27 July 2016

CaseChat Overview and Summary

The applicant, BAZ15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant evidence or had applied the correct legal principles in determining the applicant's fear of persecution.

Judge Street found that the delegate had failed to adequately assess the applicant's claims regarding past persecution and the risk of future persecution. The Court reasoned that a proper assessment required a holistic consideration of all the evidence presented, including the applicant's personal circumstances and the country information relevant to their claims. The delegate's approach, which appeared to compartmentalise the evidence, was found to be a failure to undertake the comprehensive assessment mandated by the relevant legislation, thus constituting a jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders