BHY15 v Minister for Immigration - [2017] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHY15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2083

Catchwords:
MIGRATION – Application for review of a decision of the International Treaties Obligations Assessor – where Applicant claims to be denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.91R

Cases cited:

BMF 16 v Minister for Immigration and Border Protection [2016] FCA 1530

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340

MZZAL v Minister for Immigration & Anor [2013] FCCA 392

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57
SZBEL v Minister for Immigration [2006] HCA 63
SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

First Applicant:

BHY15

Second Applicant:

BHZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

GREGORY SCOURSE IN HIS CAPACITY AS THE ITOA ASSESSOR

File Number:

MLG 1584 of 2015

Judgment of:

Judge Hartnett

Hearing date:

19 May 2017

Delivered at:

Melbourne

Delivered on:

19 May 2017

REPRESENTATION

Counsel for the Applicants:

Ms Harris

Solicitors for the Applicants:

Maddocks

Counsel for the First Respondent:

Mr Moseley

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1584 of 2015

BHY15

First Applicant

BHZ15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GREGORY SCOURSE IN HIS CAPACITY AS THE ITOA ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

In an amended application filed on 21 April 2017, the Applicants seek judicial review of an International Treaties Obligations Assessment (‘the ITOA’) made by the Second Respondent (‘the assessor’) dated 6 February 2016 wherein the assessor found that Australia did not have non-refoulement obligations in respect of the Applicants.
The grounds (not abandoned) of the application are as follows:-
“1. The Second Respondent failed to accord the First Applicant procedural fairness in the making of the ITOA.
Particulars
a) The Second Respondent did not provide the First Applicant with information about his review of the First Applicant's Facebook page that was adverse, relevant and significant or put the substance of that information to the First Applicant including:
i) that the Reviewer was unable to locate on the Facebook page printouts of pages provided at the ITOA interview and therefore Iranian authorities might not be able to either;
ii) that the spelling of the First Applicant's name on Facebook was different to the departmental records and therefore Iranian authorities might not be able to identify him;
b. The Second Respondent made findings in relation to the First Applicant which were speculative and which were not put to the First Applicant, including:
i) that the First Applicant may well delete comments on his Facebook page prior to any return to Iran;
ii) that the First Applicant, if questioned about the content of his Facebook page,…

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 2083
Decision Date: 19 May 2017

CaseChat Overview and Summary

The applicant, BHY15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family 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. This involved an examination of whether the delegate of the Minister had properly considered all the relevant information and applied the correct legal principles in assessing the applicant's claims for protection.

Judge Hartnett found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the risk of persecution in their country of origin. The court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all material before them. The failure to do so constituted a jurisdictional error.

Consequently, the court quashed the Minister's decision and remitted the application for a fresh decision according to law.

Orders