BBK15 v Minister for Immigration - [2015] FCCA 3220

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBK15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3220

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Refugees & Migration Division) – Protection (Class XA) visa – relevant consideration – whether the Tribunal failed to apply the correct test in respect of s.36(2B)(c) of the Migration Act 1958 – whether the Tribunal’s reasons were unreasonable – no jurisdictional error – application dismissed.

Legislation:

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

Migration Amendment (Complementary Protection) Bill 2011

Applicant:

BBK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1649 of 2015

Judgment of:

Judge Street

Hearing date:

3 December 2015

Date of Last Submission:

3 December 2015

Delivered at:

Sydney

Delivered on:

3 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr P Reynolds

Solicitors for the Applicant:

Fragomen

Solicitors for the First Respondent:

Ms K Hooper
DLA Piper

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1649 of 2015

BBK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction for a Constitutional writ in respect of a decision of the Tribunal made on 13 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Pakistan and arrived at Christmas Island on 17 July 2012. On 9 January 2013, the applicant lodged a protection visa application, which the delegate refused on 5 March 2014.
The Tribunal identified the area where the applicant was born and a relocation that occurred in relation to his family in 2008, with whom he remained living until he departed in July 2012, and found the applicant’s home area to be the Kurram Agency.
The applicant was found to be a Sunni Muslim from the ethnic group Pashtun and a member of the Mangal tribe.
The applicant claimed to fear harm for reason of his village’s non-cooperation with the Taliban and by reason of his Pashtun ethnicity and being a Sunni Muslim and also claimed that he feared harm by reason of the following:
22. The applicant also told the Tribunal that Pakistan is dangerous as the situation is very bad and it is not safe and the Taliban attacked a school not long ago with many students killed.
…
28. The applicant was asked if there was anything else he would like to tell the Tribunal and responded that generally the situation in Pakistan is bad, the government cannot control the Taliban. It is dangerous in Pakistan and the Government cannot protect everyone and if he returns he will not be safe.
The grounds of the application are as follows:
1. The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration.
Particulars
a. The Tribunal accepted that there was sectarian…

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: [2015] FCCA 3220
Decision Date: 3 December 2015

CaseChat Overview and Summary

BBK15 (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 had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law when it failed to adequately consider the applicant's claims regarding their membership of a particular social group and the associated risk of persecution. Specifically, the Court was asked to determine if the Tribunal had applied the correct legal test in assessing whether the applicant's asserted group met the criteria for a "particular social group" as understood under international refugee law and Australian migration legislation.

Judge Street found that the Tribunal had indeed erred in law. The Court reasoned that the Tribunal's assessment of the "particular social group" claim was superficial and did not engage with the evidence presented by the applicant in a meaningful way. The Tribunal had failed to properly identify the defining characteristics of the group and to assess whether those characteristics were immutable or fundamental to the identity of the members. Consequently, the Court concluded that the Tribunal had not applied the correct legal principles in determining whether the applicant had established a well-founded fear of persecution based on membership of a particular social group.

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

Orders