BMY16 v Minister for Immigration - [2019] FCCA 678

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMY16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 678

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a delegate of the Minister for Immigration and Border Protection not to grant to the applicant a protection visa – grounds relied on seek impermissible merits review of the decisions of the Administrative Appeals Tribunal and the delegate – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.414

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143
CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496
SGNB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 192

Applicant:

BMY16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1558 of 2016

Judgment of:

Judge Dowdy

Hearing date:

9 May 2018

Delivered at:

Sydney

Delivered on:

25 March 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr A. Day

Solicitors for the First Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 21 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1558 of 2016

BMY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Bangladesh aged 41 years, having been born on 5 January 1978.
By Application filed in this Court on 21 June 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 26 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 12 December 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant arrived in Australia on 6 May 2013 as an unauthorized maritime arrival. He had departed Bangladesh on 28 February 2013. He boarded a fishing trawler in Chittagong and travelled to Thailand where he stayed for around five days. He then travelled to Malaysia where he stayed for eight days before going to Indonesia where he remained for around 20 days. The Applicant then travelled from Indonesia to Australia.
An early interview was conducted at the Wickham Point Immigration Detention Centre on 5 June 2013 by an officer of the Minister. On 13 August 2013 the Applicant lodged his Protection visa application.

Claims for Protection

In his Declaration dated 31 July 2013 (Declaration) submitted in support of his Protection visa application, the Applicant advanced the following claims:
a)his ethnicity is Bengali, his religion is Sunni Muslim, he was born in a village with a population of around 5,000,…

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 BMY16 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: [2019] FCCA 678
Decision Date: 25 March 2019

CaseChat Overview and Summary

The applicant, BMY16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate of the Minister for Immigration and Border Protection's refusal to grant a protection visa. The applicant's claims for protection were based on his alleged involvement with the Bangladesh Nationalist Party (BNP) and subsequent persecution by members of the Awami League (AL), including threats and physical assault. He contended that the Bangladeshi authorities would be unable to protect him due to links with the AL and endemic corruption.

The central legal issue before the court was whether the applicant had established jurisdictional error in the AAT's decision. The applicant's grounds for review essentially sought to re-examine the merits of the AAT's findings and the delegate's original decision, rather than identifying a legal error in the decision-making process itself. The court was required to determine if the AAT had applied the correct legal principles in assessing the applicant's claims under the Migration Act 1958 (Cth), specifically concerning the criteria for a protection visa, which include the Refugee Criterion and the Complementary Protection Criterion.

The court reasoned that the applicant's application for judicial review did not demonstrate any jurisdictional error. The applicant's arguments focused on disputing the factual findings and the weight given to evidence by the AAT, which constitutes an impermissible attempt to seek a merits review. The court reiterated that judicial review is concerned with the legality of the decision-making process, not the correctness of the outcome. As no jurisdictional error was established, the application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In his Declaration dated 31 July 2013 (Declaration) submitted in support of his Protection visa application, the Applicant advanced the following claims:a)his ethnicity is Bengali, his religion is Sunni Muslim, he was born in a village with a population of around 5,000, he married in 2005 and has one son. He attended primary school until year 5 level, and from 2009 found work as a builder’s labourer.b)he was always a supporter of the Bangladesh Nationalist Party (BNP) and towards the end of 2010 he joined the BNP as an unofficial member. The BNP appealed to him because of its pro-development platform, advocacy for charity and assistance for the poor and needy in Bangladesh;c)during election campaigns he attended rallies and encouraged friends and acquaintances to support and vote for the BNP;d)in addition to rallying support, he would also take part in erecting posters and scouted for potential recruits to join the BNP;e)from January 2012 he became more active within the BNP and stepped up recruitment efforts for the BNP in his village in an attempt to garner more support for the party. His activities came to the attention of Awami League (AL) opponents of the BNP, and during May 2012 there was a threatening letter sent to his father saying that his son should leave the country if he wanted to keep his life;f)on 12 December 2012 six members from the AL came at night to his house, and though he was not there at the time they found him on the way home and beat him and kicked him until other villagers came to his assistance;g)on 16 December 2012 the Applicant’s father received another threatening letter saying that his son must leave the country if he wanted to see the Applicant alive;h)he left his home village to hide in a hostel in Dhaka until he could make arrangements to leave Bangladesh;i)he fears that if he returned to Bangladesh he would be seriously harmed or killed by the members of the AL;j)the authorities in Bangladesh would not be able to provide protection to him as they all have links to the AL and corruption is endemic in Bangladesh; and k)the AL presently holds the balance of power in government and its members would be able to find him wherever he went in Bangladesh. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....