Bko16 v Minister for Immigration - [2018] FCCA 600

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKO16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 600

Catchwords:
MIGRATION – Whether the Administrative Appeals Tribunal considered all claims made by applicant – whether the findings of the Administrative Appeals Tribunal were open – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 476
Migration Regulations 1994 (Cth), reg.2.01

First Applicant:

BKO16

Second Applicant:

BKP16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1472 of 2016

Judgment of:

Judge Emmett

Hearing date:

13 March 2018

Date of Last Submission:

13 March 2018

Delivered at:

Sydney

Delivered on:

13 March 2018

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitors for the Respondents:

Mr Justin McGovern
Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1472 of 2016

BKO16

First Applicant

BKP16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 30 June 2016, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 10 March 2015 refusing the applicants a Protection (Class XA) visa (“Protection visa”).
The first applicant is a citizen of China (“the Applicant”). The second applicant is a minor and is the son of the Applicant.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on…

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 600
Decision Date: 13 March 2018

CaseChat Overview and Summary

The applicant, Bko16, 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 Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Emmett J found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court held that the delegate's assessment was based on an erroneous understanding of the evidence presented, leading to a failure to engage with the core elements of the protection visa application. The legal principle applied was that a failure to consider all relevant evidence and to properly assess the risk of harm constitutes a jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders