BJI16 v Minister for Immigration - [2017] FCCA 2492

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJI16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2492

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in China for religious reasons – principal applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

SZGIZ v Minister for Immigration (2013) 212 FCR 235

VAS v Minister for Immigration [2002] FCAFC 350
VJAF v Minister for Immigration [2005] FCAFC 178
WAJW v Minister for Immigration [2004] FCAFC 330

First Applicant:

BJI16

Second Applicant:

BJJ16

Third Applicant:

BJK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1426 of 2016

Judgment of:

Judge Driver

Hearing date:

16 October 2017

Delivered at:

Sydney

Delivered on:

16 October 2017

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms M Donald of Sparke Helmore

ORDERS

The application filed on 3 June 2016 is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1426 of 2016

BJI16

First Applicant

BJJ16

Second Applicant

BJK16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 May 2016. The cover sheet of the Tribunal decision incorrectly states the date of the decision as 5 March 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are three applicants who are a father (applicant) and his two daughters. The applicant’s wife and a third child were not included in the visa application. Background facts relating to their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 9 October 2017.

Background

The applicant entered Australia on 21 April 2005 as the holder of a student (subclass 571) visa[1]. The student visa was cancelled on 26 June 2007, and the applicant remained in Australia unlawfully until 21 February 2009, when the applicant and the second applicant applied for protection visas[2]. That application was refused and the applicants sought…

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 2492
Decision Date: 16 October 2017

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Driver considered the application of BJI16 for judicial review of a decision made by the Minister for Immigration. The applicant sought to challenge the lawfulness of the Minister's decision concerning their immigration status.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister, in assessing BJI16's application, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Driver reasoned that the delegate's assessment had indeed been flawed. The Court found that the delegate had failed to properly engage with the evidence provided by BJI16 regarding their claims, and had instead relied on a generalised assessment that did not adequately address the specific circumstances of the applicant. This failure to consider relevant evidence constituted a jurisdictional error. Consequently, the Court quashed the Minister's decision.

Orders