BCX16 v Minister for Immigration - [2018] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCX16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 364

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 425

Cases cited:

BBK15 v the Minister for Immigration and Border Protection [2016] FCA 680.

Minister for Immigration and Citizenship v Li [2013] HCA 18.

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47.

Selvadurai V v Minister for Immigration and Ethnic Affairs [1994] FCA 1105.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884.

SZSPT v the Minister for Immigration and Border Protection [2014] FCA 1245.

SZSRY v Minister for Immigration and Border Protection & Anor [2013] FCCA 1284.

Applicant:

BCX16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 991 of 2016

Judgment of:

Judge Hartnett

Hearing date:

28 November 2017

Delivered at:

Melbourne

Delivered on:

16 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Guo

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Petrie

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $8,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 991 of 2016

BCX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Before the Court is an amended application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 April 2016 in which 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’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The grounds of application are as follows:-
“1. The Tribunal incorrectly construed s.36(2B)(c) of the Migration Act 1958 in concluding that complementary protection was precluded.
2. The Tribunal:
a. found that the Applicant’s immediate and extended family had not been harassed by ‘M’, when such a finding was not open on the evidence;
b. alternatively, constructively failed to consider the integer of the Applicant’s claim that his immediate and extended family had been harassed by ‘M’.
3. The Tribunal denied the Applicant procedural fairness and/or a hearing under s. 425 of the Act by finding that ‘M’ would still be interested in harming the Applicant on bases that were not obviously open on the known material.”
The Applicant relies upon the amended application filed on 17 November 2017 together with an affidavit affirmed by Dushan Nikolic on 17 November 2017 to…

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.

Keep reading for free

Create a free CaseChat account to read BCX16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 364
Decision Date: 16 February 2018

CaseChat Overview and Summary

The applicant, BCX16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant BCX16 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing BCX16's claims for protection. Specifically, the Court considered whether the delegate had adequately assessed the risk of persecution BCX16 might face if returned to their country of origin, and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Hartnett found that the delegate had failed to properly consider crucial aspects of BCX16's claims, particularly concerning the evidence of past persecution and the likelihood of future persecution. The Court held that the delegate's assessment was superficial and did not engage with the substance of the evidence provided by BCX16. This failure to adequately consider relevant evidence constituted a jurisdictional error. Consequently, the Minister's decision was set aside. The Court remitted the application for a protection visa to the Minister for redetermination according to law.

Orders