BMT19 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BMT19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3397
Catchwords:
MIGRATION – PROTECTION – subclass 866 visa – extension of time –citizenship pathway – applicant in detention – where applicant claims a well-founded fear of persecution by reason of fear that he will be tortured by police for having observed aftermath of police beating of a journalist and in giving evidence for that journalist – where Tribunal not satisfied of claim and does not accept that applicant observed sequel to any beating of journalist or that a claim was made or prosecution instituted by the journalist or in relation to a beating – where Tribunal not satisfied that applicant gave evidence – whether any evidence for disbelief of claim – whether findings travelled well beyond evidence and materials – whether finding irrational or illogical – where applicant delays nine years in bringing claim for protection – where Tribunal not satisfied of explanation for delay – whether  rejection of explanation for delay was irrational or illogical – whether Tribunal affected by apprehended bias – applicable principles – application dismissed.

Legislation:

Constitution Act 1901 (Cth), s.75

Migration Act 1958 (Cth), ss.36, 65, 424A, 430, 474, 476, 477

Australian Citizenship Act 2007 (Cth), s.21

Cases cited:

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Postal Corporation v D’Rozario (2014) 222 FCR 303
AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292

Capic v Ford Motor Company of Australia Ltd (Adjournment)[2020] FCA 486

CKV16 v Minister for Immigration and Border Protection [2019] FCA 342
CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47
Craig v South Australia (1995) 184 CLR 163
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309
Isbester v Knox City Council (2015) 255 CLR 135
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Livesey v NSW Bar Association (1983) 151 CLR 288
Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs…

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Details
Case
[2020] FCCA 3397
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicant, BMT19, sought judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had refused to grant the applicant a protection visa (subclass 866) and had not been satisfied with the applicant's explanation for a nine-year delay in bringing his protection claim. The applicant alleged a well-founded fear of persecution by police due to his observation of the aftermath of a journalist's beating and his potential involvement in giving evidence for that journalist.

The central legal issues before the Court were whether the Tribunal's findings were irrational or illogical, and whether they travelled beyond the evidence presented. Specifically, the Court was asked to consider whether the Tribunal's disbelief of the applicant's claim, including its findings that the applicant did not observe the events, that no claim was made by the journalist, and that the applicant did not give evidence, were supported by evidence. The Court also had to determine if the Tribunal's rejection of the applicant's explanation for the nine-year delay was irrational or illogical, and whether the Tribunal exhibited apprehended bias.

Justice Kelly found that the Tribunal's findings were not irrational or illogical and did not exceed the evidence before it. The Court accepted that the Tribunal was entitled to disbelieve the applicant's account and his explanation for the delay. Furthermore, the Court found no evidence of apprehended bias on the part of the Tribunal.

Consequently, the Court dismissed the applicant's amended application for judicial review. The parties had consented to an extension of time for the application, and the applicant was ordered to pay the costs of the first respondent.

Orders

Orders of the court

ORDERS

1. Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.

2. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. By consent, pursuant to s 477(2) of the Migration Act 1958 (Cth), the time within which the application for judicial review of the decision of the Administrative Appeals Tribunal made on 18 February 2019 be extended, now for then, to 11 April 2019.

4. The amended application dated 21 October 2020 be dismissed.

5. The applicant pay the costs of the first respondent as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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