BHJ20 v Minister for Immigration - [2020] FCCA 3065

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHJ20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3065

Catchwords:
MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal provided procedural fairness and acted reasonably in proceeding pursuant to s.426A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 351, 360, 424A, 425, 425A, 426A, 430, 441A, 441C, 476

Cases cited:

Andaraj Subramaniam v Minister for Immigration & Multicultural Affairs [1998] FCA 305
Craig v State of South Australia (1995) 184 CLR 163

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

Applicant:

BHJ20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 89 of 2020

Judgment of:

Judge Kendall

Hearing date:

11 November 2020

Date of Last Submission:

11 November 2020

Delivered at:

Perth

Delivered on:

12 November 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 89 of 2020

BHJ20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of North Macedonia. He arrived in Australia on 19 May 2011 on a student visa (Court Book (“CB”) 54).
On 22 August 2012, the applicant applied for a further student visa (CB 1). On 25 October 2012, a delegate of the first respondent (the “Minister”) refused to grant the applicant the student visa (CB 2-11). The applicant appealed that decision to the then Migration Review Tribunal. On 16 June 2014, the Migration Review Tribunal affirmed the decision and refused the visa (CB 12-14).
On 4 July 2014, the applicant requested Ministerial Intervention pursuant to s.351 of the Migration Act 1958 (Cth) (the “Act”). On 15 July 2014, the applicant was advised that the Minister had decided not to intervene (CB 15-16).
On 17 August 2014, the applicant applied for a Protection (Class XA) visa (the “visa”) (CB 20-100). The applicant claimed to fear…

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 3065
Decision Date: 12 November 2020

CaseChat Overview and Summary

The applicant, BHJ20, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the Tribunal had afforded the applicant procedural fairness and acted reasonably in its conduct of the review, particularly in relation to section 426A of the *Migration Act 1958* (Cth).

The central legal issue before Judge Kendall was whether the AAT had committed a jurisdictional error by failing to provide procedural fairness to the applicant, or by acting unreasonably in its application of section 426A of the *Migration Act*. This section pertains to the Tribunal's powers and obligations when dealing with protection visa applications.

Judge Kendall found that the Tribunal had not committed jurisdictional error. The reasoning, though not detailed in the provided text, indicates that the Tribunal's actions were considered to be procedurally fair and reasonable in the circumstances, including its approach under section 426A. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

ORDERS

1. The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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