BI v Minister for Immigration - [2017] FCCA 2652

FEDERAL CIRCUIT COURT OF AUSTRALIA

BI v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2652

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – public interest criterion 4020 – bogus document – IELTS test undertaken by imposter – whether the Tribunal erred in deciding not to waive public interest criterion 4020 – whether the Tribunal correctly understood compelling – whether the Tribunal engaged in an active intellectual process in relation to whether there were compelling circumstances affecting the interests of Australia.

Legislation:
Migration Regulations 1994, cl. 485.216 of Schedule 2, public interest criterion 4020 of Schedule 4

Cases cited:

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
MZYPZ v Ministerfor Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211
Sharma v Minister for Immigration & Border Protection [2015] FCCA 2669
WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612; [2013] FCA 327

Applicant:

PENG BI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1690 of 2015

Judgment of:

Judge Riley

Hearing date:

5 September 2017

Date of last submission:

5 September 2017

Delivered at:

Melbourne

Delivered on:

1 November 2017

REPRESENTATION

Counsel for the applicant:

Guy Gilbert

Solicitors for the applicant:

JT Lawyers Pty Ltd

Counsel for the first respondent:

Angel Aleksov

Solicitors for the first respondent:

Sparke Helmore Lawyers

Counsel for the second respondent:

None

Solicitors for the second respondent:

Sparke Helmore Lawyers

ORDERS

The application filed on 23 July 2015 and amended on 21 August 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1690 of 2015

PENG BI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.
One of the requirements for the visa was set out in cl.485.216 of Schedule 2 to the Migration Regulations 1994 (“the regulations”). That clause required the applicant to satisfy public interest criterion 4020.
Public interest criterion 4020 was in Schedule 4 of the regulations. It provided that:
(1)There is no evidence before the Minister that the applicant has given … to the Minister… a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)….
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) … if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the…

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 2652
Decision Date: 1 November 2017

CaseChat Overview and Summary

The applicant, BI, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned whether BI met the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that BI did not hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by s 36(2)(a) of the *Migration Act*. This involved assessing the credibility of BI's claims and the objective country information relevant to the claimed grounds of persecution.

Judge Riley found that the delegate had failed to adequately consider certain aspects of BI's evidence and the available country information concerning the specific social group to which BI claimed to belong. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a holistic and balanced consideration of all relevant evidence and country information. The delegate's assessment was found to be unreasonable in light of these considerations.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders