BMH15 v Minister for Immigration - [2016] FCCA 3199

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMH15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3199

Catchwords:
MIGRATION – Application in a Case to reinstate – substantive application seeking review of the decision of the former Refugee Review Tribunal – whether there is a satisfactory explanation for non-appearance – whether it is in the interests of justice to warrant reinstatement – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476
Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Cases cited:

SZVCH v Minister for Immigration & Anor [2015] FCCA 2950; (2015) 303 FLR 403

Minister for Immigration v SZVCH [2016] FCAFC 127
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507

Applicant:

BMH15

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent:	ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2049 of 2015

Judgment of:

Judge Nicholls

Hearing dates:

8 July 2016 and 19 July 2016

Date of Last Submission:

19 July 2016

Delivered at:

Sydney

Delivered on:

22 December 2016

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Mr Glavac of Clayton Utz

ORDERS

The Application in a Case made on 30 May 2016 is dismissed.
Order 3 made by Registrar Morgan on 3 March 2016 is vacated.
The applicant pay the first respondent’s costs set in the amount of $9000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2049 of 2015

BMH15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Application in a Case (“AIC”) made on 30 May 2016 seeking reinstatement of an originating application made by the applicant on 22 July 2015. That originating application was made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 18 June 2015, which affirmed a decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
That application was dismissed by a Registrar of this Court pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) at a callover before the Registrar, because of the applicant’s non-appearance at the callover.
Although the AIC makes no reference to r.16.05 of the FCC Rules, I have proceeded on the basis that the applicant sought reinstatement of his originating application pursuant to that Rule.
The Minister opposes the making of such an order. The Minister’s written submissions, filed in these proceedings on 7 June 2016, set out the relevant procedural history. Given what is contained on the Court’s file, this is a fair summation of the relevant events, and the relevant paragraphs are as follows ([6] – [11] of the respondent’s written submissions):
“[6] The Originating Application was listed for a first court date at 10:15am 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: [2016] FCCA 3199
Decision Date: 22 December 2016

CaseChat Overview and Summary

The applicant, BMH15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant BMH15 a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing BMH15's claims for protection, had failed to properly consider or give sufficient weight to certain aspects of the evidence presented, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth).

Judge Nicholls found that the delegate's assessment of BMH15's claims contained a failure to properly consider material evidence. The Court reasoned that the delegate's reasons for decision did not adequately address significant portions of the evidence relating to the applicant's fear of persecution, particularly concerning specific threats and the potential for harm upon return to their country of origin. This failure amounted to a jurisdictional error, as the delegate had not undertaken the comprehensive assessment mandated by the legislation.

Consequently, the Court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders