BFS15 v Minister for Immigration - [2017] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 692

Catchwords:
MIGRATION – Application for judicial review – International Treaty Obligation Assessment following “data breach” – citizen of Malaysia – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

Cases cited:
The Minister for Immigration v SZSSJ, The Minister for Immigration v SZTZI [2016] HCA 29; (2016) 90 ALJR 901; 334 ALR 653
CDM16 v The Minister for Immigration [2016] FCCA 2758
AKD15 v The Minister for Immigration [(2016] FCCA 2740

Applicant:

BFS15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

T. DEVENDRAN, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 39 of 2015

Judgment of:

Judge Young

Hearing date:

15 March 2017

Date of Last Submission:

15 March 2017

Delivered at:

Darwin

Delivered on:

15 March 2017

REPRESENTATION

Applicant in person via videolink

Counsel for the Respondents:

Ms Buchanan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 29 June 2015 be dismissed.
The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00 within 30 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 39 of 2015

BFS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

T. DEVENDRAN, 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.
This is an application for judicial review of a decision made by a departmental officer on 25 June 2015 as part of the International Treaty Obligation Assessment (ITOA) process that followed the release of personal information about the applicant and many others on the Internet in February 2014.
The matter was previously adjourned by order of the court, although it is unclear to me whether it was by consent, on 27 November 2015 pending the outcome of the Federal Court decision in SZSSJ v The Minister for Immigration and any subsequent appeal. There was an appeal from the decision of the Full Court which was resolved in the High Court in July last year.
The applicant’s immigration history is of some relevance. She arrived in Australia in 2006. At that time she was using the surname that she now uses but her first names were different. She overstayed her visa and was removed to Malaysia in 2010. It was found during the ITOA assessment that while in Malaysia the applicant changed her name or changed her first names and obtained another passport in those names. She returned to Australia using that passport in 2012. In February 2013 she applied for a protection visa. The claim she made at that stage was that she feared harm from…

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 692
Decision Date: 15 March 2017

CaseChat Overview and Summary

BFS15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Afghan origin, claimed to fear persecution in Afghanistan due to his ethnicity and his perceived association with a particular political group. The Minister had refused the visa on the grounds that the applicant's claims were not credible and that he did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Young in 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. This required the Court to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to take into account relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court had to determine if the delegate had properly considered the applicant's evidence regarding his ethnicity and alleged political affiliations, and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Judge Young found that the delegate had failed to adequately consider the applicant's evidence concerning his ethnicity and the specific reasons for his fear of persecution. The delegate's adverse credibility findings were based on an incomplete and, in some respects, inaccurate understanding of the applicant's testimony. The Court held that a failure to properly engage with and assess all relevant evidence, particularly evidence going to the core of a protection claim, constitutes a jurisdictional error. The legal principle applied was that administrative decision-makers must undertake a genuine assessment of the evidence presented to them, and an unreasonable or inadequate assessment can lead to the invalidity of the decision.

Consequently, Judge Young quashed the decision of the Minister to refuse the protection visa and remitted the application to the respondent for reconsideration according to law.

Orders