BIN18 v Minister for Immigration - [2019] FCCA 2725

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIN18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2725

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant not believed – whether the Authority should have considered exercising its power under s.473DC of the Migration Act 1958 (Cth) or erred in applying country information or failed to deal with a particular social group claim considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 46A, 473DB, 473DC

Cases cited:

BGN16 v Minister for Home Affairs [2019] FCA 78
CCQ17 v Minister for Immigration [2018] FCA 1641
DFW16 v Minister for Immigration [2018] FCA 746
DGZ16 v Minister for Immigration [2018] FCAFC 12
DPH17 v Minister for Immigration & Anor [2019] FCCA 2258
DPI17 v Minister for Home Affairs [2019] FCAFC 43
DYK16 v Minister for Immigration [2018] FCAFC 222
FGC17 v Minister for Immigration [2019] FCA 559
FND17 v Minister for Immigration [2019] FCA 1369
Minister for Home Affairs v AYJ17 [2019] FCA 591
Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526
Minister for Immigration v SZVFW (2018) 357 ALR 408
MZZJO v Minister for Immigration (2014) 239 FCR 436

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

NAHI v Minister for Immigration [2004] FCAFC 10
SZNOE v Minister for Immigration [2012] FCA 96

Applicant:

BIN18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 734 of 2018

Judgment of:

Judge Driver

Hearing date:

25 September 2019

Delivered at:

Sydney

Delivered on:

6 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr N Kulkarni

Solicitors for the Applicant:

Stamford Law

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application as amended by leave granted on 25 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 734 of 2018

BIN18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iraq who arrived in Australia on 26 November 2012 apparently at Christmas Island, as an unauthorised maritime arrival.[1] On 17 December 2012[2] the applicant participated in an Irregular Maritime Arrival Entry Interview.[3] The interview record states some of the applicant’s claims.[4]
[1] Court Book (CB) 56, 62 and 142
[2] CB 1
[3] CB 1-16
[4] CB 10
Between November 2012 and March 2014 the applicant was in detention centres, following which he was…

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: [2019] FCCA 2725
Decision Date: 6 November 2019

CaseChat Overview and Summary

The applicant, BIN18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. BIN18 claimed to fear harm in Iraq. The IAA had not believed the applicant's claims and had refused the visa. 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 made a jurisdictional error. Specifically, the Court was asked to consider if the IAA should have exercised its power under section 473DC of the *Migration Act 1958* (Cth), whether it erred in its application of country information, or whether it failed to adequately address the applicant's claim concerning a particular social group.

Judge Driver found that the IAA had not made a jurisdictional error. The Court reasoned that the IAA had properly considered the available country information and had adequately dealt with the applicant's claims, including those relating to a particular social group. The Court concluded that the IAA was not obliged to exercise its power under section 473DC in the circumstances and that its decision was open to it on the evidence before it.

The application for judicial review was dismissed.

Orders