BJL16 v Minister for Immigration - [2019] FCCA 1915

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJL16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1915

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the applicant’s fear of harm arising from his Arab ethnicity and his anti-government political opinions as an activist – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not considering the totality of his case and acted legal unreasonably and procedurally unfairly in in not disclosing to him that it was considering the rejection of claims that had been accepted by the Delegate – applicant fails to establish any jurisdictional error – application for judicial review dismissed.

Legislation:

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

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

CRJ17 v Minister for Immigration & Border Protection [2018] FCA 1404
DAX18 v Minister for Home Affairs [2019] FCA 653
DBE16 v Minister for Immigration & Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant:

BJL16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1430 of 2016

Judgment of:	Judge Dowdy
Hearing date:	6 September 2017

Date Judgment reserved:

17 July 2018

Delivered at:

Sydney

Delivered on:

17 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp of Counsel

Solicitors for the Applicant:

Shelly Legal

Counsel for the First Respondent:

Mr T. Reilly of Counsel

Solicitors for the First Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed on 29 August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1430 of 2016

BJL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Iran of Arabic ethnicity aged 42 years, having been born on 2 April 1977.
By Amended Application filed in this Court on 29 August 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 29 April 2016 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 April 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa).

Background

The Applicant was born at Ahwaz in Khuzestan Province in Iran and lived there all his life before departing Iran to commence…

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 1915
Decision Date: 17 July 2019

CaseChat Overview and Summary

BJL16 sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the Minister for Immigration's refusal to grant a protection visa. The applicant's claim for protection was based on a fear of harm stemming from his Arab ethnicity and his anti-government political opinions as an activist. The application was heard by Judge Dowdy in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the IAA had committed jurisdictional error by failing to consider the totality of BJL16's case, and whether the IAA had acted unreasonably and with procedural unfairness. Specifically, BJL16 alleged that the IAA erred by not disclosing its intention to reject claims that had previously been accepted by the Delegate of the Minister.

Judge Dowdy found that the IAA had not committed jurisdictional error. The court reasoned that the IAA was entitled to conduct its own assessment of the evidence and was not bound by the findings of the Delegate. The IAA's decision-making process, as evidenced in the material before the court, demonstrated that it had considered the applicant's claims in their entirety, including his ethnicity and political opinions. Furthermore, the court found no evidence of legal unreasonableness or procedural unfairness, as the IAA was not obliged to disclose its preliminary views or potential rejections of claims that had been accepted by the initial decision-maker.

Consequently, the application for judicial review was dismissed.

Orders