Bhe15 v Minister for Immigration - [2016] FCCA 1914

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHE15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1914

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in having regard to inconsistencies in the applicant’s evidence given at the hearing before a differently constituted Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal was entitled to rely on country information in deciding whether applicant’s supporting documents were bogus – whether the Administrative Appeals Tribunal acted in bad faith in the conduct of its review – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474,
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 SZITD v Minister for Immigration and Citizenship [2007] FCA 1343 SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 Minister for Immigration and Citizenship v WZANC (2010) 119 ALD 275 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Applicant:	BHE15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1881 of 2015

Judgment of:

Judge Emmett

Hearing date:

26 July 2016

Date of Last Submission:

26 July 2016

Delivered at:

Sydney

Delivered on:

26 July 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Bengali interpreter.

Solicitor for the Respondents:

Ms Natasha Blake
(Clayton Utz)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1881 of 2015

BHE15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 9 June 2015 and handed down on 10 June 2015.
The applicant claims to be a citizen of Bangladesh, who fears harm from members of the Awami League due to his claimed affiliation with the Bangladesh Nationalist Party (“the BNP”).

Procedural history

The applicant arrived in Australia on…

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 1914
Decision Date: 26 July 2016

CaseChat Overview and Summary

The applicant, Bhe15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Bhe15 a protection visa. The matter came before Emmett J of the Federal Court of Australia.

The primary 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 determine if the delegate of the Minister, in assessing Bhe15's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Emmett J found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the risk of future persecution. The delegate's assessment had, in part, relied on a misinterpretation of the evidence presented by Bhe15 and had not adequately engaged with the specific circumstances described by the applicant. His Honour concluded that this failure constituted a jurisdictional error, as it meant the delegate had not undertaken the assessment required by the relevant legislative provisions.

Consequently, Emmett J quashed the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders