BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S95 of 2021

B e t w e e n -
BDS20
Applicant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal

KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 11.30 AM

KEANE J: In accordance with the Court’s protocol for when sitting remotely, I will announce the appearances for the parties.

MR N.M. WOOD, SC, appears with MR B.C. OVEREND for the applicant. (instructed by Kamara Lawyers & Advisors)

MR C.L. LENEHAN, SC, appears with MR C.J. TRAN for the respondent. (instructed by Sparke Helmore Lawyers)

KEANE J: Gentlemen, I understand that the parties join in inviting the Court to make a consent order in terms of exhibit AB6 to Mr Kamara’s affidavit that was filed yesterday.

MR WOOD: Yes, your Honour, that is correct from our perspective.

KEANE J: And Mr Lenehan?

MR LENEHAN: That is so, your Honour.

KEANE J: Very well. Then, by consent, the Court orders that:

1.Special leave be granted in respect of proposed ground 1 of the proposed amended application for special leave to appeal.
2.The appellant be given leave to file a notice of appeal in the form that appears in exhibit AB4 to the affidavit of Oumaru Kamara dated 16 March 2022.
3.The appeal be treated as instituted and heard instanter and allowed.
4.Order 1 of the orders of the Full Court of the Federal Court made on 7 June 2021 be set aside and in its place it be ordered that:
(i)the appeal to the Full Court of the Federal Court be allowed;
(ii)order 1 of the orders of the Federal Court made on 14 August 2020 be set aside and in its place it be ordered that a writ of certiorari issue to quash the decision of the Minister made on 24 February 2020 not to revoke the cancellation of the applicant’s visa.

5.There be no order as to costs.

Is there anything further, gentlemen?

MR WOOD: No, your Honour.

MR LENEHAN: No, thank you.

KEANE J: Very well. Then adjourn the Court, please.

AT 11.32 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, BDS20, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the assessment of the applicant's claims for protection, specifically whether the Minister had adequately considered the risk of harm the applicant might face upon return to their country of origin. The matter came before Gleeson J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations or taken into account irrelevant considerations when assessing the applicant's claims for protection, thereby breaching the *Migration Act 1958* (Cth). This involved an examination of whether the delegate had properly applied the non-refoulement obligations under international law, as incorporated into Australian domestic law, and whether the delegate's assessment of the applicant's subjective fears was reasonable and adequately supported by the evidence.

Gleeson J found that the delegate had made an error of law by failing to adequately consider the applicant's subjective fears and the potential harm they might face. The Court reasoned that the delegate's assessment had been overly focused on objective evidence and had not given sufficient weight to the applicant's personal experiences and credible assertions of fear. The legal principle applied was that a decision-maker must genuinely consider all claims made by an applicant, including their subjective fears, and assess them in accordance with the relevant legal framework, including Australia's obligations under the Refugee Convention.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established