BFS16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2575

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to give proper weight to the evidence – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A, 424AA, 476.

Applicant:

BFS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1284 of 2016

Judgment of:

Judge Street

Hearing date:

6 October 2016

Date of Last Submission:

6 October 2016

Delivered at:

Sydney

Delivered on:

6 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr D Mclaren

Minter Ellison Lawyers

ORDERS

The additional document filed on 29 September 2016 is marked confidential exhibit B and is not to be accessed without an order of the Court.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1284 of 2016

BFS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction in accordance with s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 April 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant first arrived in Australia on 27 July 2013 as the holder of a subclass 573 (Higher Education Sector) visa. On 24 December 2013 the applicant applied for a subclass 866 (Protection) visa.

The Delegate’s Decision

The delegate raised credibility issues in relation to the applicant and the applicant’s willingness to provide false and misleading information to the Department, as impacting on his overall credibility and consequently, the applicant’s claims for protection. The delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and was therefore not satisfied that the applicant’s fear was well-founded.
The delegate was not satisfied there were substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm. The applicant claimed to fear harm from the Taliban because he is from a prominent family of Shia Muslims who are involved in the Tehreek Nafat Fiqh-e-Jaffieriya (“TNFJ”). The applicant claimed to fear harm from the Taliban as a result of his Shia religion, his connection to his family, and his association with, and work for the TNFJ. The applicant also claimed to fear harm from the Pakistani Federal Investigation Agency, as a suspected human trafficker.

CaseChat Overview and Summary

BFS16 (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 had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The matter came before Judge Street in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the applicant's claimed fear of persecution was well-founded, specifically concerning their membership in a particular social group as defined by international refugee law. This required the Court to assess the evidence presented by the applicant and determine if it established a real chance of suffering harm amounting to persecution upon return to their country of origin, based on their identity as a member of that group.

Judge Street considered the evidence regarding the applicant's circumstances and the general situation in their country of origin. The Court applied the well-established principles for assessing claims for protection visas, including the assessment of whether a real chance of persecution existed, and whether the claimed fear was linked to one of the five refugee convention grounds, namely race, religion, nationality, political opinion, or membership of a particular social group. The Court found that the evidence did not establish that the applicant's fear was reasonably likely to be realised, nor that the claimed basis for persecution fell within the scope of membership of a particular social group as understood in international refugee law.

The application for judicial review was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established