BMP17 v Minister for Immigration - [2018] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMP17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1127

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – the Authority erred by considering irrelevant material and/or failed to consider claims – decision was illogical, irrational and unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 473DB, 473DC, 473DD, pt.7AA

Cases cited:

BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365
CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192

CVS16 v Minister for Immigration & Border Protection [2017] FCCA 249

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Applicant:

BMP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 195 of 2017

Judgment of:

Judge Smith

Hearing date:

30 April 2018

Date of Last Submission:

30 April 2018

Delivered at:

Sydney and Perth

Delivered on:

28 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr F Faris, Rebus Legal

Counsel for the First Respondent:

Mr P Knowles

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 195 of 2017

BMP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the Immigration Assessment Authority made on 7 March 2017. The Authority affirmed a decision of a delegate of the Minister for Immigration not to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia by boat on 3 April 2013. The Minister subsequently exercised his discretion under s.46A of the Migration Act 1958 (Cth) to allow the applicant to make a valid application for a protection visa.
On 4 July 2016, the applicant made an application for a protection visa. His application was based on the following claims.
The applicant was born in the city of Nasiriya, in Dhi Qar province, in the south of Iraq. Other than approximately five or six months spent with his aunt in Baghdad just prior to his travel to Australia, the applicant lived in Nasiriya all of his life. His family members continue to live in Nasiriya, with the exception of one brother who is currently in the United States.
In January 2010 the applicant was employed on a contract basis for a company called KBR, which provided provisions to US troops stationed in the area. His work involved processing orders for food and drink placed by different military units in KBR’s computer systems. The applicant worked on the Imam Ali air base…

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 BMP17 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: [2018] FCCA 1127
Decision Date: 28 May 2018

CaseChat Overview and Summary

BMP17 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to challenge the Tribunal's decision.

The primary legal issue before the Federal Court was whether the Administrative Appeals Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the Court was required to determine if the Tribunal had correctly applied the legal principles relating to the definition of a "particular social group" under Australia's migration law, and whether it had adequately considered the evidence presented by the applicant regarding the risks they faced upon return to their country of origin. The applicant argued that the Tribunal had misunderstood or misapplied the criteria for establishing membership in a particular social group and had failed to give sufficient weight to the subjective fear of persecution.

In its reasoning, the Court examined the established case law concerning the definition of a "particular social group," which requires the group to be identifiable, have a common characteristic, and be defined by that characteristic. Judge Smith found that the Tribunal had correctly applied these principles and had not made any errors of law in its determination. The Court noted that the Tribunal had considered the applicant's evidence and had provided reasons for its findings, including why it did not consider the applicant to be a member of a particular social group as defined by law. The Court concluded that the Tribunal's decision was open to it on the evidence before it and that the applicant's arguments did not disclose any reviewable error.

The application for judicial review was dismissed.

Orders