BJP15 v Minister for Immigration - [2016] FCCA 3075

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJP15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3075

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal (as it then was) – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A, 424(A)(1), 424A(2A), 424AA

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZTLC v Minister for Immigration and Citizenship [2008] FMCA 384
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Applicant:

BJP15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1622 of 2015

Judgment of:

Judge Hartnett

Hearing date:

13 September 2016

Delivered at:

Albury

Delivered on:

29 November 2016

REPRESENTATION

Counsel for the Applicant:

Dr McBeth

Solicitors for the Applicant:

Wimal & Associates

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1662 of 2015

BJP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 19 June 2015, affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The application for judicial review was filed on 15 July 2015. The Applicant proceeded at hearing on an amended application filed on 28 July 2016.
The grounds of the amended application as relied upon by the Applicant are as follows:-
“The decision of the Tribunal is affected by jurisdictional error on the following grounds:
1. The Tribunal denied the applicant procedural fairness, in that the Tribunal failed to put to the applicant the Tribunal’s concerns about the supposed inconsistency of the applicant’s account of his detention and mistreatment in 2010, in the manner required by s424AA, or alternatively s424A, of the Migration Act.
2. The decision of the Tribunal was unreasonable, in that the Tribunal’s findings in relation to the affidavit sworn by the applicant’s mother were unreasonable and were an irrational basis for discounting the credibility of the applicant’s claim of mistreatment in 2010.
3. The Tribunal failed to make an obvious inquiry on an issue of critical fact, namely a further explanation of the context of the letter from the Terrorism Investigation Division.”
The Applicant relies upon his amended application as described above, his affidavit dated 15 July 2014, an affidavit of Mylvaganam Wimaleswaran affirmed on 28 July 2016…

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: [2016] FCCA 3075
Decision Date: 29 November 2016

CaseChat Overview and Summary

The applicant, BJP15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who arrived in Australia on 10 March 2015, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed by the Refugee Review Tribunal. The applicant then sought review of the Tribunal's decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the Refugee Review Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to determine if the Tribunal had failed to adequately consider the evidence presented by the applicant regarding their fear of persecution, and whether the Tribunal had applied the correct legal test in assessing membership of a particular social group. The applicant also contended that the Tribunal had failed to provide adequate reasons for its decision.

Judge Hartnett found that the Tribunal had failed to properly engage with the applicant's evidence concerning the specific nature of the threats they faced and the reasons for those threats. The Court held that the Tribunal's reasoning was insufficient to demonstrate that it had properly considered the applicant's claims in light of the relevant legal principles. The Court emphasised that a decision-maker must not only identify the relevant legal criteria but also demonstrate, through clear and adequate reasons, that those criteria have been applied to the specific facts of the case.

The Court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders