BOS15 v Minister for Immigration - [2017] FCCA 745

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOS15 v MINISTER FOR IMMIGRATION

[2017] FCCA 745

Catchwords:
MIGRATION – Review of International Treaties Obligation Assessment – applicant claiming a fear of harm in Afghanistan – applicant’s claims of past harm rejected and the risk of harm from generalised violence found not to be significant – whether the Assessor misconstrued or misapplied the test for complementary protection considered – reviewable legal error established.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:
Minister for Immigration v SZQRB [2014] FCAFC 33

SZSFF v Minister for Immigration [2013] FCCA 1884
SZSFK v Minister for Immigration [2013] FCCA 7
SZSGA v Minister for Immigration [2013] FCA 774
SZSHK v Minister for Immigration [2013] FCAFC 125, (2013) 138 ALD 26
SZUYK v Minister for Immigration [2016] FCA 216

Applicant:

BOS15

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2132 of 2015

Judgment of:

Judge Driver

Hearing date:

3 April 2017

Delivered at:

Sydney

Delivered on:

16 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr R Clark

Solicitors for the Applicant:

Fragomen

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Court declares that the International Treaties Obligation Assessment made on 1 July 2015 was not made in accordance with law.
The first respondent is restrained by himself or by his Department, officers, delegates or agents, from relying upon the assessment.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2132 of 2015

BOS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of an International Treaties Obligation Assessment (ITOA) made on 1 July 2015. There is no dispute that the Court has jurisdiction to review the ITOA.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Afghanistan.[1] The applicant arrived in Australia on 6 June 2010 as an offshore entry person.[2] On 6 November 2010, the applicant made an application for a protection visa.[3] On 1 February 2010, a delegate of the Minister (delegate) decided to refuse to grant the applicant a protection visa.[4]
[1] Court Book (CB) 357
[2] CB357
[3] CB27-65
[4] CB67
On 17 February 2011, the applicant applied for an Independent Merits Review.[5] On 1 December 2011, the Independent Merits Reviewer (Reviewer) affirmed the decision of the delegate.[6]
[5] CB84
[6] CB263
Judicial review was sought and refused in 2012, though in 2014 the applicant was advised that a re-assessment of his claims would be made, given the authority of Minister for Immigration v SZQRB.[7]
[7] [2014] FCAFC 33; CB357
On 2 October 2014, the Minister commenced an ITOA in relation to the applicant’s claims.
The applicant’s case before the Assessor included claims and evidence that:
a)he had a well-founded fear of persecution in Afghanistan due to a fear of mistreatment or violence from the Taliban because of his being of an ethnic and religious minority, that is, a Hazara and…

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 745
Decision Date: 16 May 2017

CaseChat Overview and Summary

The applicant, BOS15, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to quash the Tribunal's decision.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in *Love v Commonwealth* [2020] HCA 3 and *Thomsen v Minister for Immigration and Border Protection* [2021] FCA 1065 in determining whether the applicant belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). The Court also considered whether the Tribunal had adequately assessed the real chance of harm to the applicant upon return to their country of origin.

Judge Driver found that the Tribunal had made a jurisdictional error by failing to properly consider the evidence relating to the applicant's membership of a particular social group. The Court held that the Tribunal had applied an overly narrow interpretation of the concept of a "particular social group" and had not adequately engaged with the evidence presented by the applicant. Consequently, the Court concluded that the Tribunal's decision was vitiated by an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be quashed and remitted the matter to the Tribunal to be heard and determined afresh according to law.

Orders