BKX15 v Minister for Immigration - [2017] FCCA 2972

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKX15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2972

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider a claim in relation to the complementary protection criterion – whether the Tribunal misapplied s.5 and s.36(2A) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 414, 476

Cases cited:

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936

Applicant:

BKX15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1987 of 2015

Judgment of:

Judge Nicholls

Hearing date:

26 May 2017

Date of Last Submission:

26 May 2017

Delivered at:

Sydney

Delivered on:

4 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Mostafa

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

The application made on 17 July 2015 and amended on 7 October 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1987 of 2015

BKX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 July 2015, and amended on 7 October 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 12 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

The applicant is a citizen of Sri Lanka. He is of Hindu religion and Tamil ethnicity (CB 32). He arrived in Australia as an “Irregular Maritime Arrival” on 16 July 2012 (CB 1 and CB 33). He applied for a protection visa on 21 December 2012 (CB 14 to CB 107). His application was refused by the delegate on 2 October 2013 (CB 124 to CB 152). The applicant applied for review to the Tribunal on 31 October 2013 (CB 154 to CB 160).
The applicant’s representative provided written submissions to the Tribunal on 20 March 2014 (CB 175 to CB 203). The applicant and his representative attended a hearing before the Tribunal…

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.

Keep reading for free

Create a free CaseChat account to read BKX15 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2972
Decision Date: 4 December 2017

CaseChat Overview and Summary

The applicant, BKX15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant BKX15 a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing BKX15's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration.

Judge Nicholls found that the delegate had failed to adequately consider material provided by BKX15 that was relevant to the assessment of the application. The Court reasoned that a failure to give proper weight to relevant evidence could constitute a jurisdictional error. Consequently, the Minister's decision was vitiated by such an error.

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

Orders