BNW15 v Minister for Immigration - [2017] FCCA 1737

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNW15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1737

Catchwords:
MIGRATION – Judicial review – International Treaties Obligation Assessment process – data breach – whether normal Departmental process used – whether denial of procedural fairness – whether finding based on no material evidence – nature of power to remove applicant from Australia – whether representation that executive power of the Commonwealth would be used – whether error established.

Legislation:

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Constitution (Cth), s.61

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
International Covenant on Civil and Political Rights

Migration Act 1958 (Cth), ss.46A(2), 48B, 195A, 197C, 198, 417, 474, 476

Cases cited:

AKR15 v Minister for Immigration & Anor [2015] FCCA 1734; (2015) 297 FLR 224
Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1

Applicant:

BNW15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number:

PEG 352 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

1 May 2017

Date of Last Submission:

1 May 2017

Delivered at:

Perth

Delivered on:

3 August 2017

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the Respondents:

Mr PJ Corbould

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 352 of 2015

BNW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks an injunction and declarations variously directed to the first respondent, the Minister for Immigration & Border Protection (“Minister”) or the second respondent, the Secretary of the Department of Immigration and Border Protection (“Secretary” and “Department” respectively) arising out of the inadvertent disclosure by the Department (then the Department of Immigration and Citizenship), in February…

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 1737
Decision Date: 3 August 2017

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered the case of BNW15 (the applicant) against the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent). The applicant sought judicial review of the respondent's decision to refuse to grant a protection visa. The dispute centred on whether the applicant had established a well-founded fear of persecution for a Convention reason.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This required the Court to determine if the delegate had failed to properly consider the applicant's claims of persecution based on their imputed political opinion and membership of a particular social group, and whether the delegate had adequately assessed the objective country information relevant to the applicant's claims.

The Court found that the delegate had failed to adequately assess the applicant's claims regarding imputed political opinion. Specifically, the delegate had not properly considered the evidence presented by the applicant that suggested their family's past political activities could lead to them being imputed with a political opinion by the relevant authorities in their country of origin. Furthermore, the delegate's assessment of the particular social group claim was found to be deficient, as it did not sufficiently engage with the specific characteristics of the group as described by the applicant and the available country information. The Court applied the principles of administrative law, including the requirement for a decision-maker to genuinely consider all relevant evidence and to provide adequate reasons for their findings.

The Court ordered that the decision of the delegate be set aside and remitted to the respondent for reconsideration according to law.

Orders