BEL16 v Minister for Immigration - [2019] FCCA 223

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEL16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 223

Catchwords:
MIGRATION – Protection visa – adverse credibility findings – case specific inquiry – where applicant made claims in his written statement that he failed to mention to the minister’s delegate – illogicality or irrationality – whether tribunal failed to consider a relevant consideration – where tribunal’s credibility findings could not be rehabilitated by a police report – no error made out in tribunal’s failure to address probative value of the report – typographical or superfluous errors in tribunal’s reasons not jurisdictional error – none of the applicant’s claims made out – application dismissed.

Legislation:

Migration Act 1958, s.474(2)

Cases cited:

Applicant:

BEL16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1023 of 2016

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Melbourne

Delivered on:

5 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Stoller

Solicitors for the Applicant:

Abode Migration Lawyers

Counsel for the First Respondent:

Mr A Aleksov

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed on 17 May 2016 as amended on 31 October 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $5 000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1023 of 2016

BEL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This application for judicial review raised two points for determination. The first was whether the credibility findings made by the tribunal were open to challenge on the basis that they were affected by jurisdictional error. The second was whether a…

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: [2019] FCCA 223
Decision Date: 5 February 2019

CaseChat Overview and Summary

The applicant, BEL16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant a protection visa. The AAT had made adverse credibility findings against the applicant, who had failed to mention certain claims in his written statement that he later raised. The applicant contended that the AAT's findings were illogical or irrational and that the Tribunal failed to consider a relevant consideration.

The central legal issues before the Federal Circuit Court were whether the AAT erred in its assessment of the applicant's credibility, particularly in light of the omissions in his initial statement and the subsequent introduction of a police report. The court was required to determine if the Tribunal's adverse credibility findings were vitiated by illogicality or irrationality, and whether the failure to give specific probative value to the police report constituted a failure to consider a relevant consideration or a jurisdictional error.

His Honour Judge J D Wilson QC found no error in the AAT's reasoning. The court held that the Tribunal's adverse credibility findings were open to it on the evidence before it, and that these findings could not be rehabilitated by the police report, which did not address the core issues of the applicant's claims. The court further determined that any typographical or superfluous errors in the Tribunal's reasons did not amount to jurisdictional error. Consequently, the court concluded that none of the applicant's claims were made out.

The application was dismissed.

Orders