BCJ18 v Minister for Immigration - [2020] FCCA 1831

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCJ18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1831

Catchwords:
MIGRATION – Visas – protection visa – no incorrect construction of exceptional circumstances under s 473DD of the Migration Act 1958 – no unreasonable failure by Immigration Assessment Authority to consider whether to exercise its power to obtain new information – relocation finding not open on the evidence – inadequate consideration of relocation issue under complementary protection assessment – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 463EA, 473DC, 473DD, 476

Cases cited:

AXB17 v Minister for Immigration & Anor [2018] FCCA 514

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister For Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

SZATV v Minister for Immigration and Citizenship [2007] HCA 40

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

Applicant:

BCJ18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 129 of 2018

Judgment of:

Judge McNab

Hearing date:

23 March 2020

Date of Last Submission:

23 March 2020

Delivered at:

Melbourne

Delivered on:

6 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Guo of Counsel

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms Oliver of Counsel

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application filed on 6 March 2018 and amended 13 September 2018 be allowed.
The decision of the Immigration Assessment Authority dated 6 February 2018 be quashed.
A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the sum of $6,667.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 129 of 2018

BCJ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 6 March 2018, and amended 13 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’ or ‘the IAA’) made on 6 February 2018. The Authority’s decision affirmed a decision of a delegate (‘delegate’) of the first respondent (‘the Minister’) refusing to grant a Temporary Protection Visa (class XD) (subclass 785) (‘TPV’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 23 March 2020.
For the reasons which follow I have concluded that the application should be allowed.

Background

Much of the background to this matter is accurately set out in the submissions filed on 6 September 2018 on behalf…

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: [2020] FCCA 1831
Decision Date: 6 July 2020

CaseChat Overview and Summary

The applicant, BCJ18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The dispute centred on whether the IAA had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and adequately considered all aspects of the applicant's claim, particularly in relation to relocation. The matter was heard in the Federal Circuit Court of Australia before Judge McNab.

The court was required to determine several key legal issues. These included whether the IAA had incorrectly construed the meaning of "exceptional circumstances" under section 473DD of the *Migration Act*, whether the IAA had unreasonably failed to exercise its power to obtain further information, and whether the IAA's finding regarding relocation was open to it on the evidence before it. Furthermore, the court had to assess whether the IAA had adequately considered the relocation issue in its assessment of the applicant's claim for complementary protection.

Judge McNab found that the IAA had not incorrectly construed the meaning of "exceptional circumstances" under section 473DD. However, the court determined that the IAA's finding that relocation was not a viable option for the applicant was not supported by the evidence. Crucially, the court held that the IAA had failed to adequately consider the relocation issue as part of its assessment of the applicant's claim for complementary protection. Consequently, the application was allowed, the IAA's decision was quashed, and a writ of mandamus was issued directing the IAA to determine the applicant's application according to law. The first respondent was ordered to pay the applicant's costs.

Orders

Orders of the court

ORDERS

1. The application filed on 6 March 2018 and amended 13 September 2018 be allowed.

2. The decision of the Immigration Assessment Authority dated 6 February 2018 be quashed.

3. A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.

4. The first respondent pay the costs of the applicant fixed in the sum of $6,667.

5. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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