BHP17 v Minister for Immigration - [2018] FCCA 3003

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHP17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3003

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority overlooked relevant material, failed to consider a particular social group claim, breached the rules of procedural fairness or failed to consider an element of the applicant’s claims considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.473CB, 473DA, 473DC, 473DD, 473DE, 473EA

Cases cited:

AFK16 v Minister for Immigration [2016] FCCA 1826

AMA16 v Minister for Immigration [2017] FCCA 303

BCQ16 v Minister for Immigration [2018] FCA 365

Craig v South Australia (1995) 184 CLR 163

CMR16 v Minister for Immigration & Anor [2017] FCCA 1715

CVS16 v Minister for Immigration & Anor [2017] FCCA 249

CVS16 v Minister for Immigration [2018] FCA 951

DBE16 v Minister for Immigration [2017] FCCA 487

DBE16 v Minister for Immigration [2017] FCA 942

DGZ16 v Minister for Immigration [2018] FCAFC 12

DJO16 v Minister for Immigration [2017] FCCA 944

DZU16 v Minister for Immigration [2017] FCCA 851

Minister for Immigration v CRY16 [2017] FCAFC 169

Minister for Immigration v DZU16 [2018] FCAFC 32

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZIAI (2009) 111 ALD 15

Minister for Immigration v SZRKT (2013) 212 FCR 99

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Paul v Minister for Immigration (2001) 113 FCR 396

Applicant:

BHP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 931 of 2017

Judgment of:

Judge Driver

Hearing date:

23 October 2018

Delivered at:

Sydney

Delivered on:

23 October 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr A Fisher of HWL Ebsworth

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 931 of 2017

BHP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATAION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 27 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims, and the decision of the Authority on them, are set out in the Minister’s outline of submissions.
The applicant is a male citizen of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2012. On 1 July 2016, he lodged a SHEV[1] application.[2] The applicant claimed to fear harm on the basis of his Tamil…

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 3003
Decision Date: 23 October 2018

CaseChat Overview and Summary

The applicant, BHP17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant had claimed a fear of harm in Sri Lanka due to several asserted reasons. The IAA had disbelieved parts of the applicant's account and found other claimed fears to be not well-founded. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had committed a jurisdictional error by overlooking relevant material, failing to consider a claim relating to a particular social group, breaching the rules of procedural fairness, or failing to consider an element of the applicant’s claims.

Judge Driver found that the IAA had not committed a jurisdictional error. The Court reasoned that the IAA had adequately considered the material before it and had provided sufficient reasons for its findings. The Authority’s assessment of the applicant’s credibility and the assessment of the claimed fears were found to be within its powers. The Court concluded that the applicant had not established any failure by the IAA to consider a particular social group claim or any breach of procedural fairness.

The application for judicial review was dismissed.

Orders