BJI16 v Minister for Immigration

Link copied
Case Copied 14 min read

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:

AMA15 v Minister for Immigration [2015] FCA 1424
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration v NAMW (2004) 140 FCR 572
Minister for Immigration v SZVCH [2016] FCAFC 127
NAHI v Minister for Immigration [2004] FCAFC 10
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZGIY v Minister for Immigration [2008] FCAFC 68

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

  1. The application filed on 3 June 2016 is dismissed.

  2. 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

  1. 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

  1. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read BJI16 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 2492
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.