BFP15 v Minister for Immigration - [2017] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFP15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 1048

Catchwords:
MIGRATION –Judicial review – International Treaty Obligation Assessment – alleged denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653

CDM16 v Minister for Immigration & Anor [2016] FCCA 2758
AKD15 v Minister for Immigration & Ors [2016] FCCA 2740

Applicant:

BFP15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 42 of 2015

Judgment of:

Judge Young

Hearing date:

9 May 2017

Date of Last Submission:

9 May 2017

Delivered at:

Darwin

Delivered on:

9 May 2017

REPRESENTATION

Applicant in person via video link

Counsel for the Respondent:

Ms Davidson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Applicant’s oral application for an adjournment be dismissed.
The application filed 30 July 2015 be dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 42 of 2015

BFP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Application for adjournment

The applicant has made an oral application for adjournment. This matter was originally set down for hearing on 17 December 2015. However, on 19 November 2015 I made an order adjourning the matter pending the outcome of the hearings leading to the decision in Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653. The hearing date was vacated and the matter was adjourned indefinitely. At that stage it appears that the applicant was – I hesitate to use the word ‘represented’ because nothing I have heard suggests that the applicant was in any real sense of the word represented - in communication with some lawyers who had prepared his application for judicial review of a decision of an assessor in an International Treaty Obligation Assessment. As I say, the matter was adjourned indefinitely and on 13 February 2017, following the High Court decision in SZSSJ, the court through an administrative process sent a listing notice to each of the parties advising that this matter was listed for hearing before me today at 2.45 pm Eastern Standard Time. I say Eastern Standard Time because the applicant is…

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: [2017] FCCA 1048
Decision Date: 9 May 2017

CaseChat Overview and Summary

The applicant, BFP15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims for protection, specifically relating to the risk of persecution in their country of origin. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and fear of future persecution, in accordance with the *Migration Act 1958* (Cth) and relevant international obligations, particularly the Refugee Convention. This involved determining if the delegate had made findings of fact that were not supported by evidence or had failed to take relevant considerations into account.

Judge Young found that the delegate had failed to adequately assess the applicant's claims regarding the specific nature and severity of the persecution they alleged to have suffered. The delegate's reasoning was found to be superficial and did not engage with the detailed evidence provided by the applicant. The Court reiterated the principle that a decision-maker must genuinely consider all relevant evidence and provide reasons that demonstrate this consideration, particularly when assessing claims of persecution. The delegate's failure to properly weigh the evidence led to an unreasonable conclusion regarding the applicant's fear of future harm.

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

Orders