BFI16 v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFI16 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 731

Catchwords:
MIGRATION – Protection visa – students apply for Protection visas following expiry of Student visas and rejection of applications for Graduate visas – applicants’ claim for protection grounded on claim to be member of particular social group, being homosexuals in Pakistan – applicants found not to be credible witnesses and claims found to be implausible – delay in applying for visas – applicable principles – whether Tribunal’s manner of consideration of claims entailed jurisdictional error – whether affected by unreasonableness – judicial review of application grounded upon challenge to fact finding by Tribunal – distinguished from application grounded upon challenge to exercise of statutory discretionary power – judicial review by evaluation of quality of Tribunal’s decision based upon evidence and submissions made to it – whether Tribunal failed to consider claims or evidence – whether finding of legal unreasonableness could properly be reached by a process of aggregation of impugned facts, none of which had been individually found to be unreasonable, irrational nor illogical – whether claim considered – whether no evidence for finding of fact – whether impugned finding a precondition to the exercise of jurisdiction or a critical step in ultimate decision – applications dismissed.

Applicant:

BFI16

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1073 of 2016

Judgment of:

Judge A Kelly

Hearing date:

2 February 2018

Date of Last Submission:

2 February 2018

Delivered at:

Melbourne

Delivered on:

29 March 2019

REPRESENTATION

Counsel for the Applicant in proceedings MLG 1073/2016 and proceedings MLG 1077/2016:

Mr Moore

Solicitors for the Applicant in proceedings MLG 1073/2016 and proceedings MLG 1077/2016:

Asylum Seeker Resource Centre

Counsel for the Respondent in proceedings MLG 1073/2016 and proceedings MLG 1077/2016:

Mr Hosking

Solicitors for the Respondent in proceedings MLG 1073/2016 and proceedings MLG 1077/2016:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed on 5 January 2018 be dismissed.
The first respondent file and serve any submissions on costs within 7 days.
The applicant file and serve any submissions on costs within 14 days.
The question of costs be decided on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1073 of 2016

BFI16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By amended applications each filed on 5 January 2018, applicants in related proceedings[1] sought judicial review of decisions made by the Administrative Appeals Tribunal (Tribunal) on 29 April 2016 affirming decisions of a delegate of the first respondent (Minister) to refuse to grant them Protection (Class XA) visas pursuant to par 65(1)(a) of the Migration Act 1958 (Cth) (Act). By consent those applications were heard together. The applicants, who are Pakistani citizens, were born in Sahiwal and Lahore, Punjab Province, and are aged 28 and 32 years respectively. Each of the applicants speak English and Urdu. Each had departed Pakistan legally; arriving in Australia in December 2009 and July 2009 upon Subclass 572 Student visas so as to study engineering and accounting respectively.
[1] In proceedings MLG 1073 and MLG 1077 of 2016.
By reasons for judgment in proceeding MLG 1077 of 2016, published this day, I made orders dismissing that application for judicial review: [2019] FCCA 730. Those reasons are incorporated in these reasons for judgment and explain why I have concluded that this application should also be dismissed.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 29 March 2019.

The applicant, BFI16, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute centred on whether the Minister's decision was affected by jurisdictional error. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister, in assessing BFI16's claim for a protection visa, had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's subjective fear of persecution and the objective country information relevant to that fear.

Judge A Kelly found that the delegate had failed to properly consider the applicant's subjective fear, as evidenced by the delegate's reasoning which appeared to dismiss aspects of the applicant's account without adequate justification. The Court applied the principles of administrative law concerning the proper consideration of evidence and the avoidance of jurisdictional error, reiterating that a decision-maker must engage with and assess all relevant evidence presented by an applicant. The Court concluded that the delegate's assessment was flawed, constituting a jurisdictional error.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established