BDW15 v Minister for Immigration - [2017] FCCA 2742

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDW15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2742

Catchwords:
MIGRATION – 15-month delay between Tribunal hearing and decision – delay inordinate – applicant denied a fair hearing by reason of that delay – constitutional writs issued.

Legislation:

Migration Act 1958 (Cth), ss.360(1), 425(1)

Cases cited:

AKD16 v Minister for Immigration & Anor (2016) 315 FLR 228
Galea v Galea (1990) 19 NSWLR 263
Haros v LinfoxAustralia Pty Ltd (2012) 287 ALR 507
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67

Applicant:

BDW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1441 of 2015

Judgment of:

Judge Wilson

Hearing date:

10 October 2017

Date of Last Submission:

10 October 2017

Delivered at:

Melbourne

Delivered on:

10 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr N. Wood

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the First Respondent:

Mr A. Yuile

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 2 June 2015.
An order in the nature of a writ of mandamus issue directing the

second respondent to hear and determine the application for review according to law.
The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1441 of 2015

BDW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issue in this case was whether the Administrative Appeals Tribunal (“the Tribunal”) denied the applicant procedural fairness or otherwise failed to perform its statutory function when the Tribunal delayed for over 15 months between the hearing of this case, that involved an assessment of credibility based on demeanour, and the handing down of its decision.
Ultimately the Tribunal determined the applicant’s application for a protection visa adversely to the applicant. The question is whether that decision can stand.

Synopsis

For the reasons that follow, in my judgment the Tribunal’s decision cannot stand. It was vitiated by jurisdictional error. I order the issue of constitutional writs. The Minister must pay the applicant’s costs of this proceeding.

Short factual narration

The relevant chronological sequence of events may be shortly stated. They were as follows –
a)the applicant filed his application for the review of the delegate’s decision on 6 September 2013;
b)on 23 January 2014 the applicant was invited to appear before the Tribunal on 20 February 2014, which invitation the applicant accepted;
c)the Tribunal convened the hearing on 20 February 2014 and between 1.14 p.m. and 4.01 p.m. the Tribunal heard evidence from the applicant;
d)the Tribunal gave the applicant until 6 March 2014…

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 2742
Decision Date: 10 November 2017

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard the matter of BDW15 (the applicant) against the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent). The applicant sought judicial review of the respondent's decision to refuse to grant a protection visa. The dispute centred on whether the applicant held a genuine fear of persecution in their country of origin, a fear that was said to be based on membership of a particular social group.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider the evidence before them, particularly in relation to the applicant's alleged membership of a particular social group and the nature of the harm they feared. The Court also considered whether the delegate's findings were reasonably open to them on the evidence presented.

Judge Wilson found that the delegate had made an error of law by failing to adequately consider the evidence relating to the applicant's membership of a particular social group. The delegate's assessment had been overly narrow and had not properly engaged with the expert evidence and the applicant's personal circumstances. Consequently, the delegate's conclusion that the applicant did not hold a genuine fear of persecution was not reasonably open on the evidence. The Court quashed the decision of the Minister and remitted the application for a protection visa to the respondent for redetermination according to law.

Orders