BCV15 v Minister for Immigration - [2016] FCCA 2315

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCV15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2315

Catchwords:
MIGRATION – Visa – protection visa – error of law as to social group – ‘for reason of’ – error found – separate and unimpeachable – independent finding as to relocation – not challenged – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(aa)(2B)(a), 65 & 414

Cases cited:

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant:

BCV15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 224 of 2015

Judgment of:

Judge Heffernan

Hearing date:

3 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Adelaide

Delivered on:

12 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms K Clark

Solicitors for the Applicant:

Hopelights Lawyers

Counsel for the Respondents:

Ms C Stokes

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application dated 26 June 2015, and the amended application dated 3 March 2016, are dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 224 of 2015

BCV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), as it then was, dated 20 May 2015 which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant has raised three grounds as follows:[1]
[1] The applicant was given leave on 3 March 2016 to file amended grounds.
“1.The Applicant was denied procedural fairness by the Tribunal’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.
2.The Tribunal made an error of law in that it misapplied the test of membership of a particular social group.
Particulars
a)The Applicant claims he faces a real chance of serious harm if returned to Sri Lanka by reason of his membership of a particular social group, namely “Wealthy Tamil Businessman”.
b)The Tribunal accepted that such a social group exists and that the Applicant is a member of it.
c)The Tribunal found that the Applicant faced no real chance of serious harm by reason of his membership of that group, and rather that the Applicant was targeted by CID extortionists solely on account of his perceived wealth and capacity to pay.
d)The Tribunal failed to take into account or properly address the Applicant’s claim that the extortionists were able to threaten the Applicant by stating that if he…

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: [2016] FCCA 2315
Decision Date: 12 September 2016

CaseChat Overview and Summary

The applicant, BCV15, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The matter came before Judge Heffernan in the Federal Circuit and Family Court of Australia. The core of the dispute concerned the applicant's claims for protection, which had been assessed by the Department of Home Affairs and subsequently by the Administrative Appeals Tribunal.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to consider whether the Tribunal had failed to adequately consider all relevant evidence, including the applicant's subjective account of events and any corroborating evidence, when determining whether the applicant had a well-founded fear of persecution. The Court also considered whether the Tribunal had applied the correct legal test in assessing the risk of harm.

Judge Heffernan found that the Tribunal had failed to adequately engage with significant portions of the applicant's evidence, particularly concerning the alleged persecution in the applicant's country of origin. The Court held that the Tribunal's reasons did not demonstrate a proper consideration of the cumulative impact of the evidence presented by the applicant, nor did they sufficiently explain why certain aspects of the applicant's testimony were not accepted. The legal principle applied was that a tribunal must provide reasons that are sufficient to enable a party to understand the basis of the decision and to identify whether an error of law has occurred.

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