BJO18 v Minister for Home Affairs - [2019] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1616

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Protection (subclass 785) visa – extension of time – granted – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133;

361 ALR 227

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; 69

AAR 376

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

253 FCR 496; 70 AAR 413; 253 FLR 496

CQY16 v Minister for Immigration & Anor [2017] FCCA 236; 326 FLR 263

Minister for Immigration and Border Protection vSZVFW [2017] FCAFC 33;

248 FCR 1

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 78 ALJR 180; 203 ALR 112; 78 ALD 8

Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; 66

ALJR 605; 108 ALR 55

Applicant:

BJO18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 155 of 2018

Judgment of:

Judge Mercuri

Hearing date:

18 February 2019

Date of Last Submission:

18 February 2019

Delivered at:

Melbourne

Delivered on:

28 June 2019

REPRESENTATION

Senior counsel for the applicant:	Mr Burnside QC
Junior counsel for the applicant:	Mr Cowen

Solicitors for the applicant:

De Novo Legal

Counsel for the respondents:

Mr Aleksov

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicant’s application for an extension of time is granted.
The applicant’s application filed 21 March 2018 and amended 21 January 2019 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 155 OF 2018

BJO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The applicant seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the IAA”) made on 16 January 2018 affirming the decision made by a delegate of the first respondent, the Minister for Home Affairs (“the Minister”) not to grant the applicant a protection visa (“the visa”).
The applicant is a citizen of Pakistan. He is a Pashtun of the Turi tribe and a Shia Muslim. He comes from Agra, Parachinar, Kurram Agency, Federally Administered Tribal Areas in Pakistan.
He arrived at Christmas Island by boat on 6 July 2013 as an unauthorised maritime arrival.[1] On 6 November 2015, the Minister exercised his power under section 46A(2) of the Migration Act 1958 (Cth) (“the Act”), permitting the applicant to apply for the visa.[2]
[1] Court book page 74.
[2] Court book pages 29 to 34.
The applicant applied for the visa in early April 2016 and, in…

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 1616
Decision Date: 28 June 2019

CaseChat Overview and Summary

The applicant, BJO18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to be a refugee and asserted that they would face persecution if returned to their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to challenge the Tribunal's decision.

The central legal issue before the Court was whether the Administrative Appeals Tribunal had erred in law when it affirmed the delegate's decision to refuse the protection visa. Specifically, the applicant argued that the Tribunal failed to adequately consider or properly assess certain aspects of their claim, particularly concerning the risk of persecution based on their imputed political opinion and membership of a particular social group. The applicant contended that the Tribunal's findings were not supported by the evidence before it and that it had applied an incorrect legal standard in assessing the risk of harm.

In its reasoning, the Court examined the Tribunal's decision-making process, focusing on the evidence presented by the applicant and the Tribunal's assessment of that evidence. The Court applied the principles of administrative law, including the requirement for tribunals to provide adequate reasons for their decisions and to conduct a fresh, merits-based review of the original decision. The Court considered whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Refugee Convention*, particularly in relation to the assessment of a real chance of persecution. The Court found that the Tribunal had failed to properly engage with critical aspects of the applicant's evidence and had made findings that were not open to it on the material before it.

Consequently, the Federal Court found that the Administrative Appeals Tribunal had erred in law. The Court quashed the Tribunal's decision and remitted the application for a protection visa to the Tribunal to be heard and determined according to law.

Orders