BKB15 v Minister for Immigration - [2018] FCCA 143

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKB15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 143

Catchwords:
MIGRATION – Protection visa – grounds of review amounting to an invitation to conduct a merits review – impermissible – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 36(2A), 91R, 424A

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

BKB15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1627 of 2015

Judgment of:

Judge Wilson

Hearing date:

4 December 2017

Date of Last Submission:

4 December 2017

Delivered at:

Melbourne

Delivered on:

25 January 2018

REPRESENTATION

Solicitors for the Applicant:

Hodges Legal

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The amended application filed on 5 December 2017 is dismissed.
The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1627 of 2015

BKB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Consequent upon the grant of leave to the applicant to file and serve an amended initiating application, the applicant contended in this case that the Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error for two reasons. The first was that the Tribunal allegedly failed to give the applicant an opportunity to explain inconsistencies in his evidence. The second was that the Tribunal allegedly failed to give reasons for a particular finding.
In seeking protection, the applicant claimed he feared harm –
a)because of his Tamil race;
b)because of his imputed political opinion as a supporter of the LTTE and of his opposition to the government of Sri Lanka; and
c)on the basis that he would be perceived to be opposed to the government by reason of his Tamil ethnicity, his status as a failed asylum seeker and his membership of a particular social group, namely, as a failed asylum seeker seeking to return to Sri Lanka.
The applicant, a Sri Lankan national, entered Australia as an unauthorised maritime arrival on 29 June 2012. On 6 November 2012, the applicant applied for a protection visa. On 4 July 2013 the Minister’s delegate refused to grant the protection visa to the applicant. On 4 July 2013 the applicant applied to the Tribunal for review of the delegate’s decision. On 16 April 2015 the Tribunal heard the applicant and subsequently received material from him. On 29 June 2015 the Tribunal affirmed the delegate’s decision.
The applicant sought judicial review in this court from the Tribunal’s refusal to grant…

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: [2018] FCCA 143
Decision Date: 25 January 2018

CaseChat Overview and Summary

The applicant, BKB15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Wilson of the Federal Circuit and Family Court of Australia.

The central 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 the applicant's claims, had failed to properly consider relevant evidence or had applied an incorrect legal standard in determining the applicant's claims of persecution.

Judge Wilson found that the delegate had made a jurisdictional error. The reasoning focused on the delegate's failure to adequately assess the applicant's claims regarding past persecution and the real chance of future persecution. The Court applied the principles established in cases concerning the assessment of protection visa claims, emphasising the need for a comprehensive and objective evaluation of all available evidence. The delegate's assessment was found to be superficial and did not engage with the specific details of the applicant's account, leading to an unreasonable conclusion.

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

Orders