BOQ16 v Minister for Immigration - [2017] FCCA 256

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOQ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 256

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of inter family harm in Pakistan – applicant disbelieved in part and Tribunal finding that harm was not Convention related – otherwise no real risk of significant harm – whether the Tribunal had overlooked relevant material considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91S, 424A, 424AA

Cases cited:
Minister for Immigration v SZRKT [2013] FCA 317,(2013) 302 ALR 572
Minister for Immigration v SZSRS & Anor (2014) 309 ALR 67
SZOIN v Minister for Immigration [2011] FCAFC 38

Applicant:

BOQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1630 of 2016

Judgment of:

Judge Driver

Hearing dates:

7 December 2016, 16 February 2017

Delivered at:

Sydney

Delivered on:

3 March 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Solicitors for the Respondents:

Mr T Reilly

DLA Piper

ORDERS

The application filed on 27 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1630 of 2016

BOQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 May 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is from Pakistan and had made claims of serious harm relating to inter family disputes. Background facts relating to the applicant’s claim for protection and the decision of the Tribunal on it are set out in the Minister’s first written submissions filed on 10 November 2016.
The applicant is a male citizen of Pakistan born on 11 October 1984.[1] He arrived in Australia on 3 March 2012 as the holder of a business subclass 456 visa.[2]
[1] Court Book (CB) 26
[2] CB 13, 88, 156 [2]
The applicant applied for a protection (Class XA) visa on 2 April 2012.[3] His claims were set out in his application form:[4]
a)the applicant claimed to fear harm in Pakistan arising out of a long time family dispute with another family. He claimed that his uncle was murdered in 1978, following which his father was accused of a revenge murder and jailed for two years. The applicant claimed that, in 1996, two of his father's uncles were murdered, and three others were injured, yet his father escaped. He claimed that all eight sons of the rival family were arrested and jailed for five years, and were subsequently released from 2001 subject to strict bail conditions, until 2006. The applicant claimed that, between 2006 and 2009, his family's business and farm were attacked on five occasions;
b)the applicant claimed that, on 6 January 2010, he…

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 256
Decision Date: 3 March 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by BOQ16 against the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought to challenge a decision made by the Minister to refuse to grant a protection visa. The case was heard in the Federal Circuit and Family Court of Australia.

The central 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 consider whether the delegate of the Minister, in assessing the applicant's claims for protection, had failed to properly consider relevant evidence or had applied the wrong legal test in relation to the assessment of risk of harm.

Judge Driver found that the delegate had failed to adequately consider crucial evidence relating to the applicant's fear of persecution, particularly concerning the specific circumstances of their alleged past experiences and the potential for future harm. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all relevant evidence when determining claims for protection. The failure to properly engage with this evidence constituted a jurisdictional error.

The Court made orders setting aside the decision of the Minister and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders