BGN16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BGN16 v Minister for Home Affairs [2019] FCA 78

Appeal from: BGN16 v Minister for Immigration and Border Protection [2018] FCCA 2567
File number: NSD 1858 of 2018
Judge: GRIFFITHS J
Date of judgment: 8 February 2019
Catchwords: MIGRATION – appeal from a judgment and orders of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the Administrative Appeals Tribunal (AAT) did not fail to consider the appellant’s claim that she had a well-founded fear of persecution as a member of a particular social group – whether the primary judge erred in finding that medical and other evidence before the AAT could not reasonably have suggested to it that that the appellant’s decision to not attend the AAT hearing was due to some medical or mental impairment, rather than due to genuine and informed consent – Held: appeal dismissed, with costs
Legislation: Migration Act 1958 (Cth), 425, 426A, 428
Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160; 135 FCR 567

SZJRU v Minister for Immigration and Citizenship [2009] FCA 315

SZNOE v Minister for Immigration and Citizenship [2012] FCA 96

Date of hearing: 6 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Appellant: Mr A N Silva
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1858 of 2018
BETWEEN:

BGN16

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

8 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or assessed. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J

  1. This is an appeal from a judgment and orders dated 14 September 2018 by the Federal Circuit Court of Australia (FCCA).  The judgment is reported as BGN16 v Minister for Immigration and Border Protection [2018] FCCA 2567. The FCCA dismissed the appellant’s application for judicial review of a decision by the Administrative Appeals Tribunal (AAT), which affirmed the delegate’s decision not to grant her a protection visa. 

    Summary of background facts

  2. The appellant is a citizen of Jordan.  Her application dated 15…

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Details
Case
[2019] FCA 78
Decision Date

CaseChat Overview and Summary

In the matter of BGN16 v Minister for Home Affairs, the appellant, BGN16, sought to appeal against a judgment and orders of the Federal Circuit Court of Australia. The appellant was appealing the court's decision to dismiss her application for review of a decision made by the Administrative Appeals Tribunal (AAT). The appellant sought a visa on the basis of a fear of persecution if she were to return to Jordan, on account of her Christian faith and status as a single woman. The appellant also sought to argue that the AAT had failed to consider her claim that she had a well-founded fear of persecution as a member of a particular social group. Further, the appellant sought to argue that the AAT had failed to consider that her decision not to attend the AAT hearing was due to some medical or mental impairment.

The court found that the AAT had not erred in its consideration of the appellant's claim that she had a well-founded fear of persecution as a member of a particular social group. The AAT had made clear findings that the information provided by the appellant in support of her application was not sufficiently detailed to enable the AAT to be satisfied that she faced a real chance of persecution for a Convention reason in Jordan. The AAT had also made a positive finding that it did not accept that the appellant had been harassed, vilified, threatened or verbally abused. The court found that these findings provided a sufficient basis to dismiss that aspect of the appellant's review application. The court also found that there was no evidence before the AAT that could have reasonably suggested that the appellant's decision not to attend the AAT hearing was due to some medical or mental impairment, rather than due to genuine and informed consent.

The court dismissed the appeal, with costs. The court found that the primary judge had not erred in his findings, and that there was no appealable error established in relation to the primary judge's finding at [35]. The court noted that the AAT's findings were sufficient to dismiss the appellant's review application, and that there was no evidence before the AAT that could have reasonably suggested that the appellant's decision not to attend the AAT hearing was due to some medical or mental impairment. The court concluded that the appeal should be dismissed, with costs.

In light of the above, the court made the following orders: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or assessed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

No appealable error has been established in relation to the primary judge’s finding at [35].Conclusion For these reasons, the appeal will be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

The Minister made submissions as to why ground 1(c) should be rejected. They are substantially reflected in my reasons below. Consideration and determination For the following reasons, the appeal should be dismissed. The AAT made a clear finding at [14] that the information provided by the appellant in support of her application was not sufficiently detailed to enable the AAT to be satisfied that she faced a real chance of persecution for a Convention reason in Jordan. The AAT also made a positive finding at [15] that it did not accept that the appellant had been harassed, vilified, threatened or verbally abused etc. Those findings provided a sufficient basis to dismiss that aspect of the appellant’s review application. It was not necessary for the AAT to consider whether the appellant was at a risk of persecution for a Convention-reason, such as because she is a Christian, and/or a single woman who lived alone in a small town in a Middle Eastern society. That is because, where “the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection”, it was not necessary for the AAT to go further (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [95] per McHugh, Gummow and Hayne JJ). As Greenwood J said in SZNOE at [78]:78.Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]- [50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to indentify (sic) and consider the precise social group to which the applicant claims membership. These principles apply here. As noted above, the AAT found that the written information provided by the appellant in her protection visa application was not sufficiently detailed to enable the AAT to be satisfied that she faces a real chance of persecution for a Convention reason in Jordan or that her case attracted complementary protection. Because the appellant declined to be interviewed by either the Department or the AAT, the AAT was confined to considering her review application on the basis of the written material before it. The AAT considered the appellant’s claims of risk of persecution and rejected them. Having rejected the appellant’s claim at that level, it was unnecessary for the AAT to descend into a greater level of particularity and to respond to any claim by the appellant that she was a member of a particular social group.