BCN18 v Minister for Home Affairs - [2018] FCCA 2641

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCN18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2641

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Tribunal found Applicant was not a witness of truth – whether Tribunal made illogical assumptions in considering a psychologist report and a psychiatrist report submitted by the Applicant – – whether Tribunal rejected expert opinions and substituted its own opinion – whether there were logical connection between evidence and conclusions drawn by the Tribunal – Tribunal’s credibility concerns were not overcome by evidence of the Applicant’s mental state – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

Cases cited:

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
MZXTT v Minister for Immigration and Citizenship [2008] FMCA 1007
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676

Applicant:

BCN18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 610 of 2018

Judgment of:

Judge Baird

Hearing date:

6 August 2018

Date of Last Submission:

6 August 2018

Delivered at:

Sydney

Delivered on:

28 September 2018

REPRESENTATION

Counsel for the Applicant:	Ms M Yu
Solicitors for the Applicant:	Ms A Battisson, Human Rights for All Pty Ltd

Solicitors for the First Respondent:

Mr A Fisher, HWL Ebsworth

ORDERS

The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 610 of 2018

BCN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, dated 31 January 2018, which affirmed the decision of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minister for Immigration and Border Protection), made 25 May 2017. The Delegate refused to grant the Applicant a Protection (Subclass 866) Visa.
The Applicant is a 26 year old Tajik Sunni Muslim and a citizen of Afghanistan. He arrived in Australia in June 2015 on a Subclass 309 Provisional Partner visa on the basis of his marriage in Kabul to an Australian citizen of Afghani descent. The Applicant married his former wife, Ms A, in Kabul in 2014. She returned to Australia and sponsored the Applicant for a partner visa which was granted offshore.
At the end of June 2015, the Applicant arrived in Australia. However, once settled in Australia Ms A informed him that she did not wish to be married to him. As a result of the breakdown of their relationship a litany of “allegations”, by Ms A and her siblings were made, and the Applicant was charged with domestic violence related offences against…

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 2641
Decision Date: 28 September 2018

CaseChat Overview and Summary

The applicant, BCN18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter was heard by Judge Baird in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and fear of future persecution, particularly in light of the evidence presented. This involved determining whether the delegate's findings were reasonably open on the evidence and whether the correct legal standards for assessing protection claims had been applied.

Judge Baird found that the delegate's assessment of the applicant's claims was flawed. The Court reasoned that the delegate had failed to adequately consider certain aspects of the applicant's evidence regarding past experiences and had not properly assessed the credibility of the applicant's account in its entirety. The Court applied principles of administrative law, including the requirement for decision-makers to undertake a comprehensive and balanced assessment of all relevant evidence and to provide adequate reasons for their findings.

The Court quashed the original decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders