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BJI17 v Minister for Immigration

BJI17 v Minister for Immigration

Case [2018] FCCA 2405 7 September 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BJI17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2405

Catchwords:
MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority decision – relocation within Afghanistan – whether the Authority erred in making findings that were not open to it – whether the Authority erred in finding that it was reasonable to relocate to Mazar-e-Sharif – whether the Authority erred in its assessment of real risk of serious harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA

Articles and other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)
Department of Foreign Affairs and Trade, “DFAT Thematic Report – Hazaras in Afghanistan”, 8 February 2016
International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force 23 March 1976)
Jamestown Foundation, Terrorism Monitor “Foreign Fighters and Sectarian Strikes: Islamic State Makes Gains in ‘Af-Pak’ Region”, Volume: 14 Issue: 24, 15 December 2016
Refugees Convention Act 2012 (Republic of Nauru)
UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016
United Nations Human Rights Committee, Communication No 2053/2011 (BL v Australia), 112th sess, UN Doc CCPR/C/112/D/2053/2011, (2014)

Cases cited:

AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106

ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

CRI026 v The Republic of Nauru (2018) 355 ALR 216

CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14
DFE16 v Minister for Immigration & Border Protection (2017) 317 FLR 215
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZANX v Minister for Immigration & Border Protection [2017] FCA 307
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94

Applicant:

BJI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 180 of 2017

Judgment of:

Judge Smith

Hearing date:

1 May 2018

Date of Last Submission:

14 June 2018

Delivered at:

Sydney (Perth by video link)

Delivered on:

7 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr N Draper, Granich Partners

Counsel for the Respondents:

Mr P Hannan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 180 of 2017

BJI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 10 March 2017. The Authority affirmed a decision of a delegate of the Minister of Immigration…

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 BJI17 v Minister for Immigration

Details

AGLC: BJI17 v Minister for Immigration [2018] FCCA 2405
Case: [2018] FCCA 2405
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, BJI17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant BJI17 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary 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, in assessing BJI17's claims for protection, had failed to properly consider relevant information or had applied an incorrect legal standard.

Judge Smith found that the delegate had failed to adequately consider crucial evidence relating to BJI17's fear of persecution. The Court reiterated the principle that when assessing a protection visa application, decision-makers must undertake a holistic assessment of all available information, giving due weight to evidence that establishes a well-founded fear of persecution. The delegate's failure to properly engage with this evidence constituted a jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a fresh decision according to law.

Orders