BET16 v MIBP - [2016] FCCA 3165

FEDERAL CIRCUIT COURT OF AUSTRALIA

BET16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3165

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – where facsimile of review application failed to transmit – “authorised officer” – whether the Tribunal had jurisdiction to review the delegate’s decision – no jurisdiction to review decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 66(1), 411(1), 412, 414, 494B

Migration Regulations 1994 (Cth), regs.2.16(3), 4.31(1)

Cases cited:

Applicant:

BET16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 224 of 2016

Judgment of:

Judge Smith

Hearing date:

28 September & 5 December 2016

Date of Last Submission:

5 December 2016

Delivered at:

Sydney and by video-link to Perth and Yonga Hill Immigration Detention Centre

Delivered on:

14 December 2016

REPRESENTATION

The applicant appeared in person by way of videolink.

Counsel for the First Respondent:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 224 of 2016

BET16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant is a citizen of India who arrived in Australia on 23 March 2009 as the holder of a student visa. He became an unlawful non-citizen on 28 April 2015 and was taken into immigration detention on 8 December 2015, having served a prison sentence for unlicensed driving and “reckless conduct endangerment cause serious injury”.
On 18 December 2015 the applicant applied for a protection visa on the basis that he claimed to fear harm from his family and community in India because of his imprisonment and conduct in Australia.
On 15 February 2016 a delegate of the Minister decided to refuse to grant the applicant a protection visa. A letter setting out the decision and the reasons for it was handed to the applicant by hand by an officer of the Department.
On 23 February 2016, the applicant asked an officer of Serco[1] to send by facsimile an application for review to the Administrative Appeals Tribunal. There were three attempts made that afternoon to fax the document, but none were successful. The applicant eventually lodged an application with the Tribunal on 11 March 2016.
[1] The company responsible for the management of immigration detention facilities in Australia.

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 3165
Decision Date: 14 December 2016

CaseChat Overview and Summary

BET16 (the applicant) sought judicial review of a decision made by the Minister for Immigration and Border Protection (the respondent) to refuse to grant the applicant a visa. The applicant had applied for a Protection visa. The Minister's delegate had refused the application, and this decision was affirmed by the Administrative Appeals Tribunal. The applicant then sought to challenge the Tribunal's decision in the Federal Court.

The primary legal issue before the Federal Court was whether the Administrative Appeals Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the court was required to consider whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in determining whether the applicant had a well-founded fear of persecution. This involved examining the Tribunal's findings of fact and its application of the legal tests for establishing refugee status.

Judge Smith found that the Tribunal had made a jurisdictional error. The Tribunal had failed to adequately consider all the evidence presented by the applicant regarding the risk of harm they would face if returned to their country of origin. The court held that the Tribunal's reasoning was insufficient and did not demonstrate a proper understanding of the applicant's subjective fear and the objective circumstances that might give rise to that fear. The principles of administrative law concerning the duty to provide adequate reasons and the proper application of statutory criteria were central to this finding.

Consequently, the Federal Court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined afresh according to law.

Orders