BKK17 v Minister for Immigration - [2019] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKK17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 812

Catchwords:
MIGRATION – Application for judicial review – information not relied upon by the delegate later relied upon by the Immigration Assessment Authority – reasonableness of exercise of discretion under s.473DC – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DF, pt.7AA.

Cases cited:

BMV16 v Minister for Immigration and Border Protection [2018] FCAFC 90

DFW16 v Minister for Immigration and Border Protection [2018] FCA 746

DFW16 v Minister for Immigration and Border Protection [2017] FCCA 2726

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Minister for Immigration v CRY16 [2017] FCAFC 210

Applicant:

BKK17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 672 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

26 October 2018

Date of Last Submission:

26 October 2018

Delivered at:

Melbourne

Delivered on:

1 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Smyth

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms Campbell

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 22 November 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant costs fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 672 of 2017

BKK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

Procedural History

The applicant seeks judicial review of a decision of the IAA made on 22 November 2016 under Part 7AA of the Migration Act 1958 (“the Act”), affirming a decision of a delegate to refuse the applicant a Safe Haven Enterprise Visa.
The applicant arrived by boat in March 2013. In March 2016 the applicant was invited to apply for a visa, which he did that month. The application was refused by a delegate in September 2016.

The applicant’s claims

The IAA summarised the applicant’s claims as:
•    The applicant became interested in Christianity during childhood and started researching about religion when he was about 13 years of age. Other people at the school reported him to the school principal.
•    He was friends with some Armenian Christians and developed an interest in Christianity when he was around 20 to 30 years old.
•    He discussed Christianity with his Armenian Christian colleagues, and read Christian related materials.
•    He repeatedly attempted to enter churches in Iran. As Muslims are not allowed to enter churches, he was warned, arrested, threatened, monitored, detained, forced to make confessions and signed declarations not to appear at the church.
•    His mother came to Australia as a refugee, and became a Christian about 20 years ago. His mother influenced and encouraged him to be a Christian.
•    He has attended religious classes while in immigration detention.…

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 812
Decision Date: 1 April 2019

CaseChat Overview and Summary

The applicant, BKK17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Protection visa. The delegate of the Minister for Immigration had initially refused the visa application, but the IAA subsequently relied on information that had not been considered by the original delegate when affirming that refusal.

The central legal issue before the Federal Court was whether the IAA's decision to rely on information not previously considered by the delegate, in the context of its review under section 473DC of the *Migration Act 1958* (Cth), was reasonable. This involved an examination of the scope of the IAA's powers and the procedural fairness obligations owed to the applicant.

Justice Riethmuller found that the IAA had acted unreasonably in relying on new information without affording the applicant an opportunity to respond to it. The Court held that while the IAA is not bound by the specific information considered by the delegate, it must still act procedurally fairly. This includes providing the applicant with notice of, and an opportunity to comment on, any adverse information that the IAA proposes to rely upon in making its decision. Consequently, the application for judicial review was allowed.

Orders