BMI17 v Minister for Immigration - [2018] FCCA 1052

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMI17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1052

Catchwords:
MIGRATION – Protection (class XA) visa – show cause procedure – applicant allegedly the victim of a loan shark causing her to flee Malaysia – her version rejected by the tribunal – whether tribunal fell into jurisdictional error – it did not – delay of four years in alleging claims to protection.

Legislation:

Migration Act 1958, sub-ss.36(2)(a),(aa)

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30
AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

Craig v State of South Australia (1995) 184 CLR 163

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Howell v Carter (No 2) (2017) 317 FLR 151
Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Applicant:

BMI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 695 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

17 April 2018

Date of Last Submission:

17 April 2018

Delivered at:

Melbourne

Delivered on:

17 April 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Solicitors for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

DLA Piper Australia

ORDERS

The application filed 6 April 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3,080.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 695 of 2017

BMI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Pursuant to consent orders made on 11 October 2017 by a registrar of this court this case was ordered to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.
Pursuant to the same orders, on a date long since passed the applicant should have filed an amended application with proper particulars of her application to this court. She failed to file that amended application, whether by the date ordered or at all. She also failed to file written submissions in support of her application for judicial review to this…

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: [2018] FCCA 1052
Decision Date: 17 April 2018

CaseChat Overview and Summary

BMI17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Afghanistan, claimed to fear persecution on the basis of imputed political opinion and membership of a particular social group. The delegate of the Minister had refused the protection visa application, finding that the applicant's claims were not credible and that Australia's non-refoulement obligations would not be breached by returning the applicant to Afghanistan. The applicant appealed this decision to the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered all the evidence before them, including the applicant's claims of persecution, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court also considered whether the delegate had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing the applicant's claims and the risk of harm upon return to Afghanistan.

His Honour Judge Wilson found that the delegate had made a jurisdictional error. The Court reasoned that the delegate had failed to adequately consider significant portions of the applicant's evidence, particularly concerning the applicant's alleged involvement with a particular political group and the threats he claimed to have received. The delegate's adverse credibility findings were found to be based on an incomplete and therefore flawed assessment of the evidence, leading to an erroneous conclusion regarding the applicant's claims of persecution. The Court applied the principles of administrative law, requiring that decision-makers consider all relevant evidence and provide reasons that are logically sound and defensible.

The Court ordered that the decision of the delegate be set aside and remitted to the respondent for reconsideration according to law.

Orders