BEJ15 v Minister for Immigration - [2016] FCCA 25

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEJ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 25

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal properly considered the consequences to the applicant of returning to Sri Lanka – whether Tribunal’s finding as to the nature of the detention in Sri Lanka was in error – whether the Tribunal properly notified the applicant that bail was a live issue – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 425(1)

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Border Protection v SZTQS [2015] 1069
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152
SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978

Applicant:

BEJ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 582 of 2015

Judgment of:

Judge Jarrett

Hearing date:

22 October 2015

Date of Last Submission:

22 October 2015

Delivered at:

Brisbane

Delivered on:

13 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Beehre

Solicitors for the Applicant:

Ravi James

Counsel for the first respondent:

Mr Mitchell

Solicitors for the first Respondent:

Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Refugee Review tribunal)”;
The amended application filed on 7 September, 2015 be dismissed; and
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 582 of 2015

BEJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of a refugee review tribunal given on 21 May, 2015 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicant has filed an amended application on 7 September, 2015 setting out his grounds of review. Both parties have filed and served written submissions to which I have had regard.

Background

The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival in July, 2012. He applied for a protection visa on 27 November, 2012.
The applicant claimed that he had resided in the Batticaloa District, Eastern Province, Sri Lanka. He claimed to have suffered harm at the hands of a suspected member of the Karuna Group, a criminal association in Sri Lanka, apparently. Specifically, he claimed that in February, 2012 a suspected member of the Karuna Group visited his home and asked him about the whereabouts of his brothers who the visitor believed had reported him (the visitor) to the police. 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: [2016] FCCA 25
Decision Date: 13 January 2016

CaseChat Overview and Summary

The applicant, BEJ15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BEJ15 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to adequately consider the applicant's claims of persecution, thereby failing to satisfy the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Jarrett found that the delegate's assessment of the applicant's claims was superficial and did not engage with the substance of the evidence provided. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant material before them. The delegate's failure to adequately assess the applicant's fear of persecution, particularly in light of the detailed evidence presented, constituted a jurisdictional error.

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

Orders