BGN16 v Minister for Immigration - [2018] FCCA 2567

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGN16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2567

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision of the Refugee Review Tribunal (Tribunal) affirming decision not to grant Protection visa – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time granted.

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant Protection visa – Tribunal proceeded with review after applicant through her legal representative informed the Tribunal the applicant did not wish to appear to give evidence and present arguments – whether the Tribunal ought to have made inquiries of the applicant before it proceeded with the review about the genuineness of the consent she had given – whether there was before the Tribunal a distinct claim the Tribunal failed to consider – whether the Tribunal acted unreasonably when, in relying on the applicant’s not having reported matters to the police, it failed to consider that the applicant may not have done so because she feared reprisals – whether there was any evidence to support applicant’s assertion that the applicant’s legal representative acted recklessly and without concern for the welfare of the applicant – whether there was any material before the Tribunal that ought reasonably to have suggested to the Tribunal that the applicant’s legal representative acted recklessly and without concern for the welfare of the applicant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 427, 428, 476, 477

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

Applicant:

BGN16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1313 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Sydney

Delivered on:

14 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Silva (Direct Access)

Solicitor for the First Respondent:

Mr L Leerdam of DLA Piper Australia

ORDERS

Pursuant to s.477(2) of the Migration Act (Cth) (Act) the 35 period provided by s.477(1) of the Act for making an application to the Federal Circuit Court of Australia…

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: [2018] FCCA 2567
Decision Date: 14 September 2018

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an application by BGN16 for an extension of time to seek judicial review of a decision by the Refugee Review Tribunal (Tribunal) affirming the refusal of a Protection visa. The primary dispute concerned whether BGN16 had provided an adequate explanation for the delay in filing the application for judicial review and whether the substantive grounds of review had merit.

The court was required to determine several legal issues. These included whether the Tribunal ought to have made further inquiries of BGN16 regarding the genuineness of her consent to proceed with the review after she, through her legal representative, indicated she did not wish to appear to give evidence or present arguments. The court also considered whether there was a distinct claim that the Tribunal failed to consider, and whether the Tribunal acted unreasonably by relying on BGN16’s failure to report matters to the police without considering her potential fear of reprisals. Finally, the court examined whether there was any evidence to support BGN16’s assertion that her legal representative acted recklessly and without concern for her welfare, and whether any material before the Tribunal ought reasonably to have suggested such conduct.

Justice Manousaridis found that BGN16 had provided an adequate explanation for the delay in applying for judicial review and that there was merit in the grounds of the substantive application. The court determined that the Tribunal should have made further inquiries regarding BGN16's consent to proceed with the review. The court also found that the Tribunal failed to consider a distinct claim and acted unreasonably in its assessment of the fear of reprisals. Consequently, the application for an extension of time was granted.

Orders