BBJ16 v Minister for Immigration - [2016] FCCA 2521

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBJ16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2521

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) Visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal correctly applied the real chance test – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant:

BBJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1116 of 2016

Judgment of:

Judge Street

Hearing date:

29 September 2016

Date of Last Submission:

29 September 2016

Delivered at:

Sydney

Delivered on:

29 September 2016

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges
Stephen Hodges Solicitor

Solicitors for the Respondents:

Ms B Griffin
Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1116 of 2016

BBJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision by the Administrative Appeals Tribunal (“the Tribunal”) made on 7 April 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was held to be a citizen of Pakistan. The applicant worked as a sea crewman and arrived in Australia on 22 February 2013 as the holder of a Maritime Crew visa (Subclass 988). On 22 February 2013, the applicant deserted the ship at Sydney, and his visa ceased on 22 February 2013.
The applicant was detained at a detention centre, and on 18 March 2013 applied for a Protection (Class XA) visa. Although the application was deemed valid, the application was subsequently withdrawn on 3 April 2013. A second application for protection on 15 April 2013 was initially deemed invalid. On 11 July 2013, the applicant made a valid application for a protection. The applicant claimed to fear harm from a local Mullah whom the applicant was speaking out against, as well as from the Taliban. The applicant claimed that he was part of a group which assisted the government in identifying Taliban members, so that the government could destroy the homes of the Taliban members.
The applicant claimed that his life and that of his family were threatened, and that one of his friends was killed when he went to visit them. The applicant claimed that he was part of a village Defence Committee and as such was targeted by the Taliban and would be in danger if he were to return to Pakistan. The applicant claimed that his name was included on a broadcast which asked people to kill those mentioned on the list. The applicant claimed that he had not applied for protection earlier as he was hoping things…

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 2521
Decision Date: 29 September 2016

CaseChat Overview and Summary

BBJ16 (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 was of Pakistani origin, claimed to fear persecution in Pakistan due to their membership of the Ahmadiyya Muslim community. The Minister had refused the protection visa application on the basis that the applicant did not meet the criteria for a refugee or a person otherwise owed protection under Australian law. The matter came before Judge Street in 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 determine if the delegate of the Minister had failed to properly consider the applicant's claims of persecution as a member of the Ahmadiyya Muslim community, and whether the delegate had adequately assessed the risk of harm the applicant would face upon return to Pakistan. This involved an examination of whether the delegate had applied the correct legal test for assessing claims of persecution and whether the delegate's findings of fact were reasonably open on the evidence before them.

Judge Street found that the delegate had made a jurisdictional error by failing to properly assess the risk of harm to the applicant. The Court reasoned that the delegate had not adequately considered the specific vulnerabilities faced by Ahmadis in Pakistan, including the potential for arbitrary detention, discrimination, and violence. The delegate's assessment had relied on a generalised view of the country situation, which did not sufficiently address the particular dangers faced by individuals of the applicant's religious affiliation. The Court applied the principles established in cases concerning the assessment of refugee claims, emphasising the need for a thorough and individualised assessment of risk.

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

Orders