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
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
The appellant is a citizen of Jordan. Her application dated 15…
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- Case
- [2019] FCA 78
- Decision Date
CaseChat Overview and Summary
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
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.