BNB17 v Minister for Immigration - [2019] FCCA 1314

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNB17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1314

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa –Part 7AA – interpreter error – corroborating evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

CPN16 v Minister for Home Affairs [2018] FCA 872
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; ALJR 618; 297 ALR 225
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001)180 ALR 1
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6; 56 ALD 231
Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600

SZRMQ v Minister for Immigration ad Border Protection [2013] FCAFC; 219 FCR 212; 139 ALD 436
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

Applicant:

BNB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 703 of 2017

Judgment of:

Judge Mercuri

Hearing date:

15 October 2018

Date of Last Submission:

26 October 2018

Delivered at:

Melbourne

Delivered on:

24 May 2019

REPRESENTATION

Counsel for the applicant:

Ms G. A. Costello

Solicitors for the applicant:

Lander & Rogers

Counsel for the respondents:

Mr N. Wood

Solicitors for the respondents:

DLA Piper

ORDERS

The applicant’s application filed on 7 April 2017 and amended on

24 September 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 703 of 2017

BNB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the

Immigration Assessment Authority (“the IAA”) under section 473CC(2) of the Migration Act 1958 (Cth) (“the Act”) to affirm a ‘fast track reviewable decision’ being a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) under section 65 of the Act to refuse to grant the applicant a protection visa (“the visa”).
In essence, the applicant raises the following concerns about the IAA’s decision:
a)the IAA failed to invite the applicant to an interview under section 473DC of the Act or take such other action as was necessary to cure the defects arising from interpreter errors in the interview before the delegate, and this failure was legally unreasonable; and
b)
the IAA failed to consider corroborating evidence to support his claim to having been sexually assaulted, namely the applicant’s physical scars and details in his…

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: [2019] FCCA 1314
Decision Date: 24 May 2019

CaseChat Overview and Summary

The applicant, BNB17, 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 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 erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing the applicant's eligibility for the visa. Specifically, the Court was asked to determine if the delegate's assessment of the applicant's character and the potential risk posed by the applicant to the Australian community had been conducted in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

Judge Mercuri found that the delegate had indeed failed to consider crucial information that was relevant to the assessment of the applicant's character, including evidence of rehabilitation and efforts made to address past conduct. Furthermore, the Court determined that the delegate had placed undue weight on certain aspects of the applicant's history that were not directly pertinent to the criteria for visa grant, thereby constituting an error of law. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and balanced assessment of all relevant material.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders