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BEG17 v Minister for Immigration

BEG17 v Minister for Immigration

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Case Copied 31 January 2018 33 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BEG17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 216

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – review of decisions – judicial review – procedural matters – applications – time for lodging and extension – long delay – arguable grounds – no prejudice to respondent.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(3), 36(4)(b), 417, 477(1)

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

First Applicant:

BEG17

Second Applicant:

BET17

Third Applicant:

BEU17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 257 of 2017

Judgment of:

Judge Jarrett

Hearing date:

23 November 2017

Date of Last Submission:

23 November 2017

Delivered at:

Brisbane

Delivered on:

31 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Boccabella

Solicitors for the Applicant:

Chand Lawyers

Counsel for the First Respondent:

Mr Byrnes

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entering a submitting appearance

ORDERS

The application filed 21 March, 2017 seeking an extension of time pursuant to s.477(1) of the Migration Act 1958 (Cth) is allowed;
The application for review be adjourned to 15 June 2018 at 2:15pm for final hearing in the Federal Circuit Court of Australia sitting at Brisbane.
No later than 4:00pm on 25 May, 2018 the applicant shall file and serve upon the respondent an outline of argument.
No later than 4:00pm on 1 June, 2018 the respondent shall file and serve upon the applicant an outline of argument.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 257 of 2017

BEG17

First Applicant

BET17

Second Applicant

BEU17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By their application filed on 21 March, 2017 the applicants seek an extension of time within which to apply to the Court for judicial review of a decision of a refugee review tribunal made on 22 October, 2014 which affirmed a decision of a delegate of the first respondent not to grant them Protection (Class XA) visas.
The first applicant was the primary visa applicant. The second applicant is his wife. The third applicant is their infant son. Only the first applicant advanced claims for protection. The second and third applicants relied upon being part of the first applicant’s family unit to secure the visas for which they applied.
The first respondent opposes both applications. The second…

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: [2018] FCCA 216
Decision Date: 31 January 2018

CaseChat Overview and Summary

The applicant, BEG17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is from Iran, claimed to fear persecution upon return to their home country due to their alleged involvement in political activities. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they would not face persecution. The matter came before Judge Jarrett in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims of persecution, particularly in relation to the assessment of their credibility and the objective evidence available concerning the situation in Iran. The applicant argued that the delegate had overlooked or misunderstood crucial aspects of their evidence and had applied an incorrect standard in assessing the risk of harm.

Judge Jarrett found that the delegate had indeed made a jurisdictional error. The Court reasoned that the delegate's assessment of the applicant's credibility was flawed, as it appeared to rely on an overly rigid and subjective interpretation of certain aspects of the applicant's account, without adequately considering the potential impact of the circumstances of the applicant's departure from Iran and their subsequent experiences. Furthermore, the Court held that the delegate had failed to properly engage with the objective country information regarding the political situation in Iran and the potential risks faced by individuals with the applicant's alleged profile. The delegate's reasoning was found to be illogical and not supported by the evidence before them, leading to an unreasonable conclusion.

Consequently, Judge Jarrett quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination in accordance with the law.

Orders