BNC15 v Minister for Immigration - [2017] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNC15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 2094

Catchwords:
MIGRATION – International Treaties Obligation Assessment – Australia’s non-refoulment obligations – whether the applicant was denied procedural fairness – data breach – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.197C, 198, 198AD, 336E

Privacy Act 1988 (Cth)

Cases cited:

BTA15 v Minister for Immigration & Border Protection [2017] FCCA 417

BTA15 v Minister for Immigration & Border Protection [2017] FCA 422

Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29

Applicant:

BNC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent:

T. DEVENDRAN, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number:

PEG 347 of 2015

Judgment of:

Judge Smith

Hearing date:

8 August 2017

Date of Last Submission:

8 August 2017

Delivered at:

Perth

Delivered on:

8 August 2017

REPRESENTATION

The applicant appeared in person via video-link.

Solicitors for the First and Second Respondents:

Mr P J Corbould, Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the first and second respondents’ costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 347 of 2015

BNC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

This is an application for relief in respect of, or in relation to an assessment of refoulement obligations owed by Australia to the applicant, known as an International Treaties Obligations Assessment (ITOA). The ITOA was made by an officer of the Department of Immigration and Border Protection (Department) on 15 July 2015.
The relevant factual background to this application has been described at [2] to [10] in the written submissions filed by the first and second respondents, which I set out below:
2.The applicant is a citizen of Fiji who was born on 18 June 1976. He arrived in Australia on 17 March 1990 as the holder of a Class UA, subclass T80 visa. On 4 January 1994 the applicant was granted a Religious Worker (Class UA, subclass 428) visa and on 26 May 2004 he was granted a Partner (Class BS, subclass 801) visa.
3.The applicant's Partner visa was cancelled under s 501 of the Migration Act 1958 (Cth) (the Act) on 10 March 2010 following the applicant's conviction of various offences on 24 March 2005.
4.Following his release from prison the applicant was detained as an unlawful non-citizen on 31 May 2012 and has remained in immigration detention since that date.
5.On 13 June 2012, the applicant applied to the Department for a Protection (Class XA) visa (protection visa). The application was refused by a delegate of the former Minister for Immigration and Citizenship on 9 August 2012 and on 14 September 2012 the delegate's…

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 2094
Decision Date: 8 August 2017

CaseChat Overview and Summary

The applicant, BNC15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal 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 Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection.

Judge Smith found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's assessment of the applicant's claims of past persecution. The Court held that the delegate had failed to adequately consider the evidence presented by the applicant regarding the specific circumstances of their alleged persecution, including the role of non-state actors. The legal principle applied was that a failure to properly consider all relevant evidence constitutes a jurisdictional error, rendering the decision invalid.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders