BDQ15 v Minister for Immigration - [2017] FCCA 162

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDQ15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 162

Catchwords:
MIGRATION – Application for protection visa – whether the Tribunal failed to deal with an integer of claim made by the Applicant – whether the Tribunal failed to take further steps to make an obvious inquiry about a critical fact relevant to its statutory functions under review – whether the Tribunal misconstrued or misstated the Applicant’s evidence – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), sub-ss.36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZRKY v Minister for Immigration and Citizenship [2013] FCA 352

Applicant:

BDQ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1437 of 2015

Judgment of:

Judge Jones

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Melbourne

Delivered on:

2 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Germov

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The Applicant’s Further Amended Application for judicial review filed 26 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1437 of 2015

BDQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 26 May 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a male citizen of Sri Lanka, who is of Tamil ethnicity and Hindu religion. He claims that his family fled to Killinochi when he was nine years old, but moved to Mannar after four years due to fighting between the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan Army. He also claims that, because the LTTE were recruiting young Tamil men, in 2007 his parents sent him to live in Colombo, where he lived with his relatives and worked in a factory and as a taxi driver.
The grounds for judicial review, specified in the Applicant’s Further Amended Application, raise two issue for determination by the Court:
a)whether the Tribunal failed to consider an integer of the Applicant’s claim, that he remained of adverse interest to the Sri Lankan authorities after he was released on bail following his arrest by the Criminal Investigation Division (“CID”) on 27 October 2008 on suspicion of being a member or supporter of the LTTE, because the Tribunal failed to make an obvious and critical enquiry in relation to what was meant by the reference contained in Court documents provided by the Applicant,…

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: [2017] FCCA 162
Decision Date: 2 February 2017

CaseChat Overview and Summary

The applicant, BDQ15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant's fear of persecution was well-founded and whether the Minister had adequately considered all relevant information in making the decision. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the Court were: (1) whether the delegate of the Minister had failed to consider relevant information regarding the applicant's claims of persecution, specifically evidence relating to the general country situation and the applicant's personal circumstances; and (2) whether the delegate's assessment of the applicant's credibility was reasonable and supported by the evidence.

Judge Jones found that the delegate had failed to properly consider crucial evidence concerning the general country situation and the applicant's specific experiences, which were central to the assessment of a well-founded fear of persecution. The Court held that the delegate's adverse credibility findings were not adequately substantiated by the material before them, leading to an unreasonable assessment of the applicant's claims. The Court concluded that the decision under review was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders