BBX16 v Minister for Immigration - [2019] FCCA 348

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBX16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 348

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – applicant claimed that the Administrative Appeals Tribunal committed jurisdictional error by exhibiting procedural unfairness, making a finding without evidence and not considering the Refugees Convention criterion – claims of jurisdictional error not made out – earlier Protection visa application already determined under Refugees Convention criterion – present Protection visa application could only be determined under complementary protection criterion – google map not “information” for the purposes of s.424A of the Migration Act 1958 (Cth) – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 417, 424A

Migration Regulations 1994 (Cth)

Cases cited:

AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424

AWA15 v Minister for Immigration [2018] FCA 604

BVE16 v Minister for Immigration and Border protection [2018] FCA 922

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

Applicant:

BBX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1146 of 2016

Judgment of:

Judge Dowdy

Hearing date:

22 February 2018

Delivered at:

Sydney

Delivered on:

21 February 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Ms M. Donald

Solicitors for the First Respondent:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 9 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1146 of 2016

BBX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of China aged 50 years, having been born on 4 July 1968.
By Application filed in this Court on 9 May 2016 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 September 2014 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant arrived in Australia on 25 October 2006 as the holder of a Temporary Student Guardian (Class TU) (Subclass 580) visa with respect to her son who was studying in Australia. This visa ceased on 31 December 2007 but was extended on 3 January 2008 and subsequently ceased on 31 December 2008.
The Applicant then lodged her first Protection visa application on 18 December 2008 (first Protection visa application) based on her practice of the Christian religion, which was refused by a Delegate on 19 March 2009. On 14 April 2009 the Applicant applied to the Refugee Review Tribunal (RRT) for merits review of the…

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: [2019] FCCA 348
Decision Date: 21 February 2019

CaseChat Overview and Summary

BBX16 sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) concerning his application for a protection visa. The Minister for Immigration was the respondent. The applicant alleged that the AAT had committed jurisdictional error by exhibiting procedural unfairness, making a finding without evidence, and failing to consider the criteria under the Refugees Convention.

The central legal issues before the court were whether the AAT had made a jurisdictional error by: (a) failing to afford the applicant procedural fairness; (b) making a finding without evidence; and (c) failing to consider the Refugees Convention criterion when determining the protection visa application.

Dowdy J found that the applicant's earlier protection visa application had already been determined under the Refugees Convention criterion. Consequently, the present application could only be assessed under the complementary protection criterion. The court held that a Google Map, in the circumstances, did not constitute "information" for the purposes of section 424A of the *Migration Act 1958* (Cth). As no jurisdictional error was established, the application for judicial review was dismissed.

Orders