BMV16 v Minister for Immigration - [2017] FCCA 3045

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMV16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3045

Catchwords:
MIGRATION – Protection visa application – judicial review of Immigration Assessment Authority – invitation for comments – time for comments – nature of invitation – no error of law.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473CA, 473DC, 473DE, 473DF, 359B, 424B

Migration Regulations 1994, reg.4.42

Cases cited:

SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406

Applicant:

BMV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1258 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

30 January 2017, 2 February 2017 and

5 September 2017

Date of Last Submission:

5 September 2017

Delivered at:

Melbourne

Delivered on:

8 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Albert with Mr Wallwork

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1258 of 2016

BMV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant applies for orders quashing a decision of the Immigration Assessment Authority (“the IAA”) made on 14 June 2016, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant arrived in Australia by boat, on 4 November 2012. On

8 January 2013, an officer of the Department conducted an entry interview with him. As the applicant was an unauthorised maritime arrival, he was precluded by s.46A(1) of the Migration Act 1958 from making a valid application for a protection visa, until the Minister had exercised his power under s.46A(2) to enable the applicant to make his application. The Minister exercised his power and, on 22 June 2015, the applicant made an application for a protection visa, relying upon a number of circumstances:
a)The applicant is a national of Sri Lanka, of Tamil ethnicity.
b)The applicant was induced, by a man from Colombo, to pay money for the purpose of obtaining a job in Korea in 2007, as was another man, who now believes the applicant was involved in a scam.
c)One evening, when the applicant was walking home from work in Sri Lanka, the other…

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: [2017] FCCA 3045
Decision Date: 8 December 2017

CaseChat Overview and Summary

The applicant, BMV16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant criteria for the grant of a protection visa, specifically in relation to the applicant's claims of persecution. The Court was required to determine if the delegate's assessment of the evidence and the application of the *Migration Act 1958* (Cth) and associated regulations were legally sound.

Judge Riethmuller found that the delegate had failed to adequately assess the applicant's claims regarding the risk of harm upon return to their country of origin. The Court held that the delegate's reasoning was flawed in its consideration of certain aspects of the applicant's evidence, leading to an erroneous conclusion. The principles of administrative law, including the duty to provide adequate reasons and to properly consider all relevant evidence, were central to the Court's determination. The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders