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BND18 v Minister for Immigration

BND18 v Minister for Immigration

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Case Copied 13 September 2019 34 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BND18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2218

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant disbelieved in critical respects – whether the review was procedurally unfair, whether the Authority made factual errors that were material, incorrectly rejected new information or misapplied the complementary protection criterion considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 65, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 499

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

ARG15 v Minister for Immigration (2016) 250 FCR 109

AUH17 v Minister for Immigration [2018] FCA 388

BDI17 v Minister for Immigration & Anor [2018] FCCA 2162

BHX18 v Minister for Home Affairs & Anor [2018] FCCA 3498

BMB16 v Minister for Immigration (2017) 253 FCR 448

BNH16 v Minister for Immigration [2017] FCAFC 109

BRA16 v Minister for Immigration [2018] FCA 127

CCQ17 v Minister for Immigration [2018] FCA 1641

CDZ16 v Minister for Immigration [2017] FCA 967

CHF16 v Minister for Immigration [2017] FCAFC 192

CQG15 v Minister for Immigration (2016) 253 FCR 496

CSF17 v Minister for Home Affairs & Anor [2018] FCCA 2611

DAO16 v Minister for Immigration (2018) 258 FCR 175

DBE16 v Minister for Immigration [2017] FCA 942

DGZ16 v Minister for Immigration [2018] FCAFC 12

DLB17 v Minister for Home Affairs [2018] FCAFC 230

DYS16 v Minister for Immigration [2018] FCAFC 33

Gill v Minister for Immigration [2017] FCAFC 51

Minister for Immigration v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481

Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407

SZBEL v Minister for Immigration (2006) 228 CLR 152

Selvadurai v Minister for Immigration (1994) 34 ALD 347

Applicant:

BND18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 817 of 2018

Judgment of:

Judge Driver

Hearing date:	13 August 2019
Date of last submission:	21 August 2019

Delivered at:

Sydney

Delivered on:

13 September 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 14 December 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 817 of 2018

BND18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 March 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the…

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 2218
Decision Date: 13 September 2019

CaseChat Overview and Summary

The applicant, BND18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm in Bangladesh. The IAA had disbelieved the applicant in critical respects when assessing their claims. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The core legal issues before the court were whether the IAA's review process was procedurally unfair, whether the Authority made material factual errors, whether it incorrectly rejected new information provided by the applicant, and whether it misapplied the complementary protection criterion. The applicant contended that these issues amounted to a jurisdictional error on the part of the IAA.

Judge Driver found no jurisdictional error. The court's reasoning focused on whether the IAA's findings were open to it on the evidence before it and whether the procedural steps taken were fair. The court considered the applicant's arguments regarding factual errors and the rejection of new information, ultimately concluding that the IAA's assessment was within its powers and that the applicant had not demonstrated a failure to afford procedural fairness or a misapplication of the relevant legal criteria.

Orders