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Bim16 v Minister for Immigration

Bim16 v Minister for Immigration

Case [2020] FCCA 3066 13 November 2020

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Immigration

Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BIM16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3066

Catchwords:
MIGRATION – Protection visa – whether the Administrative Appeals Tribunal gave adequate consideration to whether it was reasonable for the applicants to relocate to another area of their country of citizenship – whether the Administrative Appeals Tribunal failed to consider evidence regarding the reasonableness of relocation – relevance of applicant’s health – relevance of family with young children – asylum claim affecting the applicants’ ability to obtain passports – application dismissed.

MIGRATION – Procedure – where hearing is scheduled to occur by video-link – whether the Administrative Appeals Tribunal erred in proceeding by telephone following technical issues with video-link – whether the Administrative Appeals Tribunal ought to have adjourned the hearing – unreasonableness – application of section 425 of the Migration Act 1958 (Cth) – whether the applicants had the opportunity to give evidence and present arguments – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36, 422B, 425, 425A, 429A

Cases cited:

BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131
CRI026 v Republic of Nauru [2018] HCA 19

Minister for Immigration and Border Protection v MZAIV [2016] FCA 251

Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZANX v Minister for Immigration and Border Protection [2017] FCA 307

SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712

SZQAO v Minister for Immigration and Citizenship [2011] FCA 874

SZSUY v Minister for Immigration & Anor [2014] FCCA 1
SZTGP v Minister for Immigration & Anor [2018] FCCA 2281

First Applicant:

BIM16

Second Applicant:

BIN16

Third Applicant:

BIO16

Fourth Applicant:

BIP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1152 of 2016

Judgment of:

Judge Mercuri

Hearing date:

4 May 2020

Date of Last Submission:

15 May 2020

Delivered at:

Melbourne

Delivered on:

13 November 2020

REPRESENTATION

Counsel for the applicants:

Mr McBeth

Solicitors for the applicants:

Clothier Anderson & Associates

Counsel for the respondents:

Mr Yuile

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicants’ application filed on 1 June 2016 and as amended on 18 October 2018 and 5 May 2020 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1152 of 2016

BIM16

First Applicant

BIN16

Second Applicant

BIO16

Third Applicant

BIP16

Fourth Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of the delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse to grant the applicants protection visas.
The further amended application filed by the applicants[1] raised four grounds…

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.

Continue reading Bim16 v Minister for Immigration

Details

AGLC: BIM16 v Minister for Immigration [2020] FCCA 3066
Case: [2020] FCCA 3066
Decision Date: 13 November 2020

CaseChat Overview and Summary

The applicants, Bim16 and others, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant them protection visas. The core of the dispute concerned the AAT's assessment of whether it was reasonable for the applicants to relocate to another area within their country of citizenship, taking into account their health, the presence of young children in their family, and the impact of their asylum claims on their ability to obtain passports. The matter was heard in the Federal Circuit and Family Court of Australia before Judge Mercuri.

The court was required to determine two primary legal issues. Firstly, whether the AAT had given adequate consideration to the reasonableness of relocation for the applicants, and whether it had failed to properly consider the evidence presented regarding this aspect, including the specific circumstances of their health and family situation. Secondly, the court had to consider whether the AAT erred in proceeding with the hearing by telephone, following technical difficulties with a scheduled video-link, and whether this decision was unreasonable, particularly in light of section 425 of the *Migration Act 1958* (Cth), which governs the opportunity for applicants to give evidence and present arguments.

Judge Mercuri found that the AAT had adequately considered the evidence regarding the reasonableness of relocation, including the applicants' health and family circumstances, and had not failed to consider relevant material. Regarding the procedural issue, the court determined that the AAT's decision to proceed by telephone was not unreasonable in the circumstances, and that the applicants had been afforded a sufficient opportunity to present their evidence and arguments. Consequently, the applications for judicial review were dismissed.

Orders