BKS17 v Minister for Immigration - [2020] FCCA 967

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKS17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 967

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (the Authority) – whether the Authority’s decision was based on irrelevant findings – whether the Authority failed to take into account relevant considerations – no jurisdictional error revealed – grounds not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;

(1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299

DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308;

(2017) 317 FLR 215

FCS17 v Minister for Home Affairs [2020] FCAFC 68

SZATV v Minister for Immigration and Citizenship [2007] HCA 40;

(2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634;

(2007) 97 ALD 1

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;

(2009) 174 FCR 415

Applicant:

BKS17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1019 of 2017

Judgment of:

Judge Nicholls

Hearing date:

2 April 2020 and 21 April 2020

Date of Last Submission:

21 April 2020

Delivered at:

Sydney

Delivered on:

29 April 2020

REPRESENTATION

Applicant:

In person

Representative for the Respondents:

Ms A. Wong

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 4 April 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1019 of 2017

BKS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 4 April 2017, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“the IAA”) which on 3 March 2017 affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).

Background

The applicant is a citizen of Lebanon, and a Sunni Muslim (CB 10). He arrived in Australia on 6 May 2013, and was considered an “unauthorised maritime arrival” (CB 58 and CB 90). The applicant’s visa application was received by the Minister’s Department on 27 July 2016 (CB 34–CB 74). In his visa application, the applicant stated that he left Lebanon (item 89 at CB 69):
“…due to the horrible state that it was constantly in. All areas of Lebanon are subject to the civil war which includes every single person living in that country, including innocent people. These wars are between every religion and the different sects within…

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: [2020] FCCA 967
Decision Date: 29 April 2020

CaseChat Overview and Summary

The applicant, BKS17, sought judicial review of a decision made by the Immigration Assessment Authority (the Authority). The dispute concerned the Authority's assessment of BKS17's application for review of a decision made under the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Authority's decision was vitiated by jurisdictional error. Specifically, the Court was required to determine if the Authority had based its decision on findings that were irrelevant to the assessment, or if it had failed to take into account considerations that were relevant to the determination of BKS17's application.

Judge Nicholls found that no jurisdictional error had been demonstrated. The Court reasoned that the Authority's decision-making process did not involve the consideration of irrelevant matters, nor did it omit any relevant considerations that were required to be taken into account. Consequently, the grounds of review advanced by the applicant were not made out.

The application for judicial review was dismissed.

Orders