BFY15 v Minister for Immigration - [2016] FCCA 1672

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFY15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1672

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to notify the applicant that his credibility was in issue – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal failed to apply the relevant law – real chance test – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 116, 351, 474, 476, 486E

Federal Circuit Court Rules 2001, r.44.05

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant:

BFY15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1838 of 2015

Judgment of:

Judge Street

Hearing date:

5 July 2016

Date of Last Submission:

5 July 2016

Delivered at:

Sydney

Delivered on:

5 July 2016

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges
Stephen Hodges Solicitor

Solicitors for the Respondents:

Mr J Hutton
Australian Government Solicitor

ORDERS

The particulars in the Applicant’s written submissions filed on 9 September 2015 be treated as the particulars in the amended application filed on 9 September 2015 and the need to file any further document in this regard be dispensed with.
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1838 of 2015

BFY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 June 2015 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. The applicant applied for a student visa on 27 March 2007 which was approved on 30 May 2007 and the applicant arrived in Australia on 10 June 2007. The applicant applied then for a student visa vocational education and training sector visa on 26 August 2009 which was approved on 3 December 2009.
On 26 July 2012 visa cancellation consideration commenced. On 24 August 2012 the visa was cancelled under s.116 of the Migration Act 1958. On 25 September 2012 a review application of the cancellation commenced and on the 9 April 2013 the then-named Migration Review Tribunal affirmed the cancellation of the applicant’s visa. The applicant then applied for ministerial intervention on 9 May 2013. On 5 September 2013 the decision not to exercise any power under s.351 of the Migration Act 1958 was conveyed and it was not until 26 September 2013 that the applicant first applied for protection.
The delegate made adverse credit findings in relation to the applicant’s credibility and was not satisfied there was…

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 1672
Decision Date: 5 July 2016

CaseChat Overview and Summary

The applicant, BFY15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family 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 the applicant's claims, had failed to properly consider or give adequate weight to certain aspects of the applicant's evidence and submissions, thereby rendering the decision invalid.

Judge Street found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's failure to adequately address the applicant's claims regarding past persecution and the real chance of future persecution. The Court held that a proper assessment required a more thorough engagement with the specific details provided by the applicant and a more nuanced consideration of the country information relevant to their claims. The legal principle applied was that a failure to properly consider material evidence or submissions can constitute a jurisdictional error, vitiating the decision-making process.

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

Orders