Bge19 v Minister for Home Affairs - [2020] FCCA 2904

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGE19 v MINISTER FOR HOME AFFAIRS [2020] FCCA 2904

Catchwords:
PRACTICE AND PROCEDURE – Notice to Produce – Application by the Minister for Home Affairs to set aside a Notice to Produce served by the Applicant – documents provided by the Minister in response to Notice to Produce contained redacted portions claimed to be the subject of public interest immunity – Applicant sought unredacted version of documents provided – HELD the unredacted portions of the documents the subject of the Notice to Produce did not have a legitimate forensic purpose and also were prima facie protected from production by public interest immunity – Notice to Produce set aside.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth)

Migration Act 1958 (Cth), ss.65, 101, 109, 128, 131

Cases cited:

Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427
Brennan v State of New South Wales [2006] NSWSC 167

El Ossman v Minister for Immigration and Border Protection (2017) 248 FCR 491

FUD18 v Minister for Home Affairs [2019] FCA 1858
Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
R v Lipton (2011) 82 NSWLR 123
Sankey v Whitlam (1978) 142 CLR 1

Zarro v Australian Securities Commission (1992) 36 FCR 40

Applicant: BGE19

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 718 of 2019

Judgment of: Judge Dowdy

Hearing dates: 9 August 2019 & 5 December 2019

Delivered at: Sydney

Delivered on: 29 October 2020
REPRESENTATION

Counsel for the Applicant: Mr J. Gormly of Counsel

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondent: Mr G. Johnson of Counsel

Solicitors for the Respondent: Sparke Helmore
THE ORDERS OF THE COURT ARE AS FOLLOWS:
(1)The Notice to Produce dated 8 May 2019, filed on 10 May 2019 and served by the Applicant on the Respondent on 11 May 2019 is set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 718 of 2019

BGE19
Applicant
And

MINISTER FOR HOME AFFAIRS
Respondent
REASONS FOR JUDGMENT
Introduction and Background
1.I am considering an application by the Respondent, the Minister for Home Affairs (Minister), to set aside a Notice to Produce served by the Applicant on the Minister on 11 May 2019 (Notice to Produce), having earlier dispensed with the need for the Minister to file and serve a formal Application in a Case seeking such relief.
2.The Applicant is a female aged 38 years who had been granted a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act) on the basis of her claim that she and her immediate family were stateless Rohingya who had no right to reside in Bangladesh or Burma.
3.The Applicant had initially arrived in Australia on 24 July 2007 on a Student (Class TU) (Subclass 573) visa (Student…

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: [2020] FCCA 2904
Decision Date: 29 October 2020

CaseChat Overview and Summary

The applicant, Bge19, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The dispute centred on whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Dowdy J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including the applicant's personal circumstances and the general country information pertaining to their claimed country of origin. The Court also considered whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.

Dowdy J found that the delegate had made an error of law by failing to adequately assess the credibility of the applicant's claims and by not giving sufficient weight to certain documentary evidence. The Court reiterated the principle that a delegate must conduct a thorough and objective assessment of all available information, and that a failure to do so can vitiate the decision. The Court emphasised that the assessment of a well-founded fear requires a consideration of both the subjective fear of the applicant and the objective likelihood of persecution.

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

Orders