BBT16 v Minister for Immigration - [2018] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBT16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 631

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – Tribunal findings open on the evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121

Applicant:

BBT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 953 of 2016

Judgment of:

Judge Hartnett

Hearing date:

29 November 2017

Delivered at:

Melbourne

Delivered on:

15 March 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Ms Lucas

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,075.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 953 of 2016

BBT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an amended application filed 1 November 2017, seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 11 April 2016.
The single ground of review is as follows:-
“The Tribunal failed to consider an integer of the Applicant’s claims when they assessed the Applicant’s application under complementary protection, as defined by section 36(2A) (sic) of the Migration Act 1958 (Cth), when determining whether there was a real chance that the Applicant would face significant harm on his return to Pakistan.
Particular
(a) At paragraph 46 of the decision record the Tribunal relied upon Refugee Convention grounds, when assessing the Applicant’s claim for complimentary (sic) protection. In doing so the Tribunal considered the Applicant’s religion and membership of a particular social group when they incorrectly assessed whether the Applicant was owed protection under convention grounds.
b) The Tribunal fell into jurisdictional error in that it failed to assess the Applicant’s claim for complimentary (sic) protection.”
The decision of the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a protection (Class XA) visa (‘the visa’).
The central complaint in the Applicant’s amended application is that the Tribunal erred in its consideration of the complementary protection provisions under s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant relied upon written submissions filed 24 November 2017.
The First Respondent sought dismissal of the application and costs. The First Respondent filed an outline of submissions, dated 14 November 2017, upon which the Minister relied. There was also before the Court the evidence as contained in the Court Book filed 23 September 2016.

Background

The Applicant is a citizen of Pakistan who was born and resided in Balish Khel village, Kurram Agency, Pakistan. He completed schooling to a Year 9 level prior to coming to Australia. He also assisted his…

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 631
Decision Date: 15 March 2018

CaseChat Overview and Summary

BBT16 (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 a citizen of Afghanistan, claimed to fear persecution upon return to his country of origin due to his ethnicity and his perceived association with a particular political group. The matter came before the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the primary decision-maker, in assessing the applicant's claims for protection, had adequately considered and given sufficient weight to all the relevant evidence, particularly concerning the general country information relating to Afghanistan and the applicant's specific circumstances. The Court was required to determine if the decision-maker had made any errors of law in the assessment of the applicant's claims, including whether the adverse credibility findings made against the applicant were reasonably open on the evidence.

Judge Hartnett found that the decision-maker had failed to adequately consider and weigh crucial aspects of the country information pertaining to the applicant's ethnicity and the prevailing security situation in Afghanistan. Furthermore, the Court determined that the adverse credibility findings were not sufficiently substantiated by the evidence presented, leading to an erroneous assessment of the applicant's subjective fears. The Court applied principles of administrative law, emphasizing the obligation of decision-makers to conduct a thorough and balanced assessment of all relevant evidence when determining claims for protection.

The Court quashed the decision of the Minister to refuse the protection visa and remitted the application to the respondent for redetermination according to law.

Orders