BKT17 v Minister for Immigration - [2020] FCCA 1337

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKT17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1337

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) (Subclass 866) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal afforded the applicants a real and meaningful hearing – no jurisdictional error made out – application dismissed.

Legislation:

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

First Applicant:

BKT17

Second Applicant:

BKU17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 189 of 2017

Judgment of:

Judge Street

Hearing date:

25 May 2020

Date of Last Submission:

25 May 2020

Delivered at:

Sydney

Delivered on:

9 June 2020

REPRESENTATION

The Applicants appeared in person via Microsoft Teams

Solicitors for the Respondents:

Ms E Tattersall via Microsoft Teams
Sparke Helmore

ORDERS

The application is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 189 of 2017

BKT17

First Applicant

BKU17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) (Subclass 866) visas (“Protection visas”).
The applicants are husband and wife. The applicants were found to be citizens of Nepal and their claims were assessed against that country.
On 24 November 2008, the applicants applied for a student visas. On 3 April 2009, the applicants were granted student visas. On 16 April 2009, the applicants arrived in Australia. On 9 September 2011, an extension of the applicants’ student visas was refused. On 10 January 201, the Migration Review Tribunal affirmed that decision.
It was not until 31 January 2014 that the applicants applied for the Protection visas. The applicants, in summary, claimed to fear harm from Janatantrik Terai Mukti Morcha (“JTMM”) members and by reason of their families not accepting their marriage. The first applicant also claimed to fear harm from his own community. The second applicant claimed that she came from a Hindu background. The second applicant also claimed to be of a particular caste and that they have to marry someone from their own caste. The second applicant also claimed to fear being killed by the JTMM and suffering harm from her family and community.
On 5 March 2015, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas.
On 30 March 2015, the applicants lodged an application to the Tribunal for review of the Delegate’s decision. By letter dated 25 November 2016, the Tribunal invited the applicants to attend…

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 1337
Decision Date: 9 June 2020

CaseChat Overview and Summary

The applicant, BKT17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning an application for a Protection (Class XA) (Subclass 866) visa. The Minister for Immigration was the respondent. The core of the dispute revolved around allegations that the AAT had failed to properly consider relevant information and had not provided the applicants with a fair and meaningful hearing. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had committed jurisdictional error by failing to take into account relevant considerations when assessing the visa application, and whether the Tribunal had afforded the applicants a real and meaningful hearing as required by administrative law principles.

Judge Street found that the AAT had adequately considered the relevant material before it and had provided the applicants with a sufficient opportunity to present their case. The Court concluded that the process followed by the Tribunal did not amount to jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders