BEE16 v Minister for Immigration - [2017] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEE16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1935

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming fear of harm in China – first applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A

Cases cited:

BAX15 v Minister of Immigration [2016] FCA 491

SBBF v Minister for Immigration [2002] FCAFC 358

SCAA v Minister for Immigration [2002] FCA 668

Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347

SZHVL v Minister for Immigration (2008) FCA 356

First Applicant:

BEE16

Second Applicant:

BEF16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1228 of 2016

Judgment of:

Judge Driver

Hearing date:

15 August 2017

Delivered at:

Sydney

Delivered on:

15 August 2017

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms L Buchanan of Australian Government Solicitor

ORDERS

The application filed on 17 May 2016 is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1228 of 2016

BEE16

First Applicant

BEF16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 April 2016. There are two applicants who are a mother (applicant) and her elder child. A second child was born during the course of the visa application process. The Tribunal found that it had no jurisdiction in relation to the second child because there had been no decision in respect of that child by the delegate. I have no reason to doubt the correctness of that decision. It follows that the second child is free to make whatever claims for protection she may choose in the future. I was told by the applicant that she has not yet done so.
Background facts are otherwise set out in the Minister’s outline of submissions filed on 8 August 2017.
The applicants are both citizens of the People’s Republic of China (China). The applicant arrived on 16 September 2007 as the holder of a student visa. The applicant was granted further student visas, the last of which ceased on 29 October 2014. The second applicant was born in Australia on 31 May 2013.[1]
[1] Court Book (CB) 47
On 25 November 2013, the applicant lodged an application for a protection visa with her child named as a member of her family unit.[2] On 6 February 2015, the applicant and her child attended an interview with a delegate of the Minister. On 10 February 2015, the delegate refused the application.[3]
[2] CB 1-39
[3] CB 44-74
On 16 March 2015, the applicants applied for review of that decision with the former Refugee Review Tribunal…

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 1935
Decision Date: 15 August 2017

CaseChat Overview and Summary

The applicant, BEE16, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether BEE16 would be a person to whom Australia would have protection obligations under the *Migration Act 1958* (Cth). The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had erred in finding that BEE16 did not hold a well-founded fear of persecution for reasons of membership of a particular social group, specifically, being a woman who had been subjected to domestic violence. This required the Court to consider the proper application of the criteria for assessing claims of persecution based on membership of a particular social group, as informed by relevant case law and international human rights principles.

Judge Driver's reasoning focused on the delegate's failure to adequately consider the evidence presented by BEE16 regarding past experiences of domestic violence and the potential for future harm. The Court applied the principles established in cases such as *Applicant S v Minister for Immigration and Ethnic Affairs* and *K v Minister for Immigration and Ethnic Affairs*, emphasizing that a particular social group can be defined by shared immutable characteristics or by a shared past experience that continues to shape an individual's identity and vulnerability. The delegate's assessment was found to be deficient in its analysis of whether the shared experience of domestic violence constituted a basis for a particular social group and whether the fear of future harm was well-founded in light of that experience.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.

Orders