BFE15 v Minister for Immigration - [2016] FCCA 1462

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFE15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1462

Catchwords:
MIGRATION – Protection visa application – lack of procedural fairness.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169
MZYOI v Minister for Immigration and Citizenship [2012] FCA 868

Applicant:

BFE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 40 of 2015

Judgment of:

Judge Young

Hearing date:

16 February 2016

Date of Last Submission:

16 February 2016

Delivered at:

Darwin

Delivered on:

16 June 2016

REPRESENTATION

Counsel for the Applicant:

Ms Grinberg

Solicitors for the Applicant:

Eric Hutton, Solicitor

Solicitors for the Respondents:

Ms S Newman of Clayton Utz

ORDERS

The decision of the Administrative Appeals Tribunal be set aside.
The matter be remitted to the Administrative Appeals Tribunal (differently constituted) for re-consideration.
The first respondent pay the applicant’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 40 of 2015

BFE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision by the Administrative Appeals Tribunal refusing an application for a protection visa.
The applicant is a citizen of Pakistan. He is 33 years old. He left Pakistan in about 2012 for Malaysia and lived there until April 2014. On 7 April 2014 he arrived at Perth airport using a fraudulently altered Malaysian passport. He subsequently made a claim for a protection visa.
The applicant claimed to have a well-founded fear of persecution in his home country, Pakistan. He claimed to have been an adherent of the Sunni sect of Islam who transferred his adherence to the Shia sect of Islam in 2010. The applicant claimed that as a result he was then subjected to threats of harm from adherents of the Sunni sect of Islam (who make up the majority of the population of Pakistan).
The applicant claimed that sometime later he told a childhood friend about his decision to adopt Shia Islam. The childhood friend was, he said, an influential Sunni religious leader who strongly disapproved. He claimed that thereafter anonymous threats were made to him and his family. He claimed the anonymous threats stemmed from Sunni extremists who had been informed about him by his childhood friend. He also claimed that his family was pressured to expel him and he was then forced to flee to another town for his safety. He claimed that after about three months in the other town he returned to his home in 2011 to attend a Shia religious celebration and, during that celebration, was the subject of an assassination attempt by Sunni extremists. He said that in 2012 he was helped to flee Pakistan to Malaysia by members of the Shia community. He lived in Malaysia for about…

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 1462
Decision Date: 16 June 2016

CaseChat Overview and Summary

The applicant, BFE15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BFE15 a protection visa. The matter came before Judge Young of the Federal Circuit 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, in assessing BFE15's claims, had failed to properly consider relevant information or had applied an incorrect legal test in relation to the assessment of risk of harm.

Judge Young found that the delegate had failed to properly consider crucial evidence provided by BFE15 regarding the specific nature of the persecution feared. The Court held that a failure to give adequate weight to such evidence, particularly when it directly addressed the grounds for protection, constituted a failure to exercise the power conferred by the relevant legislation, thereby amounting to jurisdictional error. The principles of administrative law concerning the proper consideration of evidence and the application of statutory criteria were central to this determination.

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

Orders