BJB16 v Minister for Immigration - [2017] FCCA 2367

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJB16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2367

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91W, 473CA, 473DD, 473CDB, 473GB, 473DB

Cases cited:

South Australia v O’Shea [1987] 163 CLR 378
Haoucher v Minister [1990] 169 CLR 648
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553
DBE16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 487
DZU16 v Minister for Immigration & Anor [2017] FCCA 851
CRY16 v Minister for Immigration& Anor [2017] FCCA 1549

MZAFZ v Minister for Immigration and Border Protection [2016] 243 FCR 1

Applicant:

BJB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1163 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

4 September 2017

Date of Last Submission:

4 September 2017

Delivered at:

Melbourne

Delivered on:

10 October 2017

REPRESENTATION

Counsel for the Applicant:

Ms De Ferrari

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1163 of 2016

BJB16

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 Immigration Assessment Authority (“the IAA”) pursuant to the Migration Act 1958 (Cth) (“the Act”).
The applicant is a national of Bangladesh who applied for a protection visa in June 2015. The applicant falls within the category of a “fast-track applicant”. There is no dispute that he made a valid application for a protection visa.
The bases of his application are claims to fear harm on the basis of imputed political opinion (anti-Bangladeshi Government opinion) and his claimed affiliation with the Bangladesh Nationalist Party (BNP). He says that in 2011, as a result of his affiliation with the BNP, he was attacked by members of the Awami League (AL) and left unconscious, waking up later in hospital. He also says that he was the subject of false criminal accusations by members of the AL, and supported this with a document that was said to be a copy of a ‘First Information Report’ issued in August 2011. A further ‘First Information Report’ issued in April 2013 was also produced.
The applicant was invited to an interview by a delegate of the Minister in August 2015. This interview took place in September 2015, and it was at this interview that the applicant provided the second ‘First Information Report’. The delegate observed in the delegate’s reasons that:
The applicant appeared to speak Bengali fluently.
The applicant discussed many issues with the delegate (see court book 153 to 156, 157, 164). The delegate also forwarded one of the ‘First Information Reports’ to the Department’s…

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.

Keep reading for free

Create a free CaseChat account to read BJB16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2367
Decision Date: 10 October 2017

CaseChat Overview and Summary

The applicant, BJB16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter came before Judge Riethmuller of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection.

Judge Riethmuller found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court held that a failure to give proper weight to such evidence constituted a failure to consider relevant considerations, thereby vitiating the decision. The legal principle applied was that a decision-maker must genuinely consider all the evidence before them that is relevant to the assessment of the applicant's claims.

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

Orders