BHP16 v Minister for Immigration - [2017] FCCA 1115

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHP16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1115

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by actual bias in the form of prejudgment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 425(2)(a)

Federal Circuit Court of Australia Act 1999 (Cth), s.13

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZRNJ v Minister for Immigration & Citizenship (2014) 315 FLR 120; [2014] FCCA 782

First Applicant:

BHP16

Second Applicant:

BHS16

Third Applicant:

BHT16

Fourth Applicant:

BHU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1365 of 2016

Judgment of:

Judge Smith

Hearing date:

3 May 2017

Date of Last Submission:

16 May 2017

Delivered at:

Sydney

Delivered on:

2 June 2017

REPRESENTATION

The second applicant appeared in person

Solicitors for the Respondents:

Mr T Shaw, Clayton Utz

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1365 of 2016

BHP16

First Applicant

BHS16

Second Applicant

BHT16

Third Applicant

BHU16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The first and second applicants are citizens of China and are husband and wife. The third and fourth applicants are their children. The first applicant applied for a protection visa on 8 February 2011 after his student visa expired in December 2010. The second and third applicants applied for a protection visa on 5 September 2011. The fourth applicant made a protection visa application on 26 September 2012. Each of those applications was refused by a delegate and affirmed on review.
In March 2012, a Complementary Protection criterion was inserted into the Migration Act 1958 (Cth) (Act). In light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (SZGIZ) the first applicant was entitled to lodge a further application relying on the new criterion and he did so on 9 January 2014.
The second, third and fourth named applicant were included in that further application.
The first applicant claimed that he would face harm on return to China for three reasons: first, because his association with his father and brother. He claimed that they had previously experienced harm at the hands of security guards following a wage dispute, that his brother was on a “black list” for disseminating political material sent to him by the first applicant, and that his father was implicated in anti-government activities.
The second claim was that the first and second applicants were unmarried…

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: [2017] FCCA 1115
Decision Date: 2 June 2017

CaseChat Overview and Summary

In BHP16 v Minister for Immigration, the applicant, BHP16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BHP16 a visa. The matter was heard before Judge Smith in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing BHP16's application, thereby vitiating the decision-making process.

Judge Smith reasoned that the Minister's decision-making process had indeed been flawed. The Court found that the Minister had failed to adequately consider crucial evidence provided by BHP16 that directly addressed the grounds for refusal. This failure amounted to a failure to consider relevant considerations, which constituted a jurisdictional error. The legal principle applied was that administrative decision-makers must genuinely consider all relevant material placed before them.

Consequently, Judge Smith quashed the Minister's decision to refuse the visa and remitted the matter to the Minister for redetermination according to law.

Orders