BLC17 v Minister for Immigration - [2020] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLC17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 227

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not believed – whether the Tribunal misconstrued the test for significant harm or failed to comply with s.424A of the Migration Act or otherwise exceeded its jurisdiction considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 36(2A), 424, 424A, 424AA, 425, 438

Cases cited:

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZMCD v Minister for Immigration (2009) 174 FCR 415

Applicant:

BLC17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1023 of 2017

Judgment of:

Judge Driver

Hearing date:

5 February 2020

Delivered at:

Sydney

Delivered on:

5 February 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J. Dadgar of HWL Ebsworth Lawyers

ORDERS

The name of the first respondent is amended to the “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The application filed on 4 April 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1023 of 2017

BLC17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 8 March 2017. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal are conveniently set out in the Minister’s outline of submissions filed on 29 January 2020.
The applicant, a female citizen of Malaysia, most recently entered Australia on 7 December 2015 as the holder of a Subclass 601 (Electronic Travel Authority) visa. On 25 February 2016, the applicant applied for a protection visa.[1] On 29 March 2016, the delegate refused to grant the applicant's protection visa as he was not satisfied the applicant was a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, the delegate was not satisfied the applicant met the criteria pursuant to ss.36(2)(a) or 36(2)(aa) of the Migration Act.[2]
[1] Court Book (CB) 1
[2] CB 59
On 4 April 2016, the applicant applied to the Tribunal seeking review of the delegate's decision.[3]
[3] CB 73
On 7 November 2016, the Tribunal wrote to the applicant inviting her to attend a hearing before it on 30 November 2016 in Sydney.[4]
[4] CB 96
On 22 November 2016, the applicant replied to the Tribunal's hearing invitation and requested that the hearing take place by telephone as she was residing in Griffith, NSW.[5]…

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 227
Decision Date: 5 February 2020

CaseChat Overview and Summary

The applicant, BLC17, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which refused to grant a protection visa. The applicant claimed to fear harm in Malaysia, but the Tribunal did not believe the applicant's claims. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the Tribunal had misconstrued the legal test for "significant harm" as contemplated by the Migration Act 1958 (Cth), whether the Tribunal had failed to comply with its obligations under section 424A of the Migration Act, and whether the Tribunal had otherwise exceeded its jurisdiction.

Judge Driver found that the Tribunal had not committed jurisdictional error. The Court reasoned that the Tribunal had correctly applied the relevant legal principles in assessing the applicant's claims and had not misconstrued the test for significant harm. Furthermore, the Court was satisfied that the Tribunal had complied with its procedural obligations under section 424A of the Migration Act. Consequently, the Court determined that the Tribunal had not acted outside its jurisdiction.

The application for judicial review was dismissed.

Orders