BQI15 v Minister for Immigration - [2017] FCCA 1049

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQI15 v MINISTER FOR IMMIGRATION & ORS

[2017] FCCA 1049

Catchwords:
MIGRATION LAW – Judicial review – International Treaty Obligation Assessment – alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901, 334 ALR 653
AKR15 v Minister for Immigration and Border Protection [2015] FCCA 1734
CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758
AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740
SZGIZ v Ministerfor Immigration and Border Protection [2013] FCAFC 71
ALZ15 v Ministerfor Immigration and Border Protection [2017] FCA 279

Applicant:

BQI15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent:

AUDREY FERNANDES, DEPARTMENT IMMIGRATION AND BORDER PROTECTION

File Number:

DNG 45 of 2015

Judgment of:

Judge Young

Hearing date:

10 May 2017

Date of Last Submission:

10 May 2017

Delivered at:

Darwin

Delivered on:

10 May 2017

REPRESENTATION

Applicant

In person via video link

Counsel for the Respondents:

Ms Davidson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application filed 12 August 2015 be dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 45 of 2015

BQI15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

AUDREY FERNANDES, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision following an International Treaty Obligation Assessment, usually called an ITOA, after an event known as the ‘data breach’ in February 2014. The data breach resulted in the advertent publication on the web of personal details of various persons in detention, including the applicant in this case, such as their names, ages, nationality, whether family members were in detention and the like.
Following that release of information the Department of Immigration undertook the ITOA to assess whether or not Australia’s non‑refoulement obligations were engaged on the basis of the Refugee Convention, Convention Against Torture and the International Covenant on Civil and Political Rights. The decision in this case was that Australia’s non-refoulement obligations were not engaged.
The applicant filed an application for review. The application for review sets out 19 template grounds, some of which were considered by the High Court, or at least the claims relating to procedural fairness, in Minister for Immigration and Border Protection v SZSSJ, Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, 90 ALJR 901

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 1049
Decision Date: 10 May 2017

CaseChat Overview and Summary

The applicant, BQI15, 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 came before Judge Young of the Federal Circuit 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, had failed to properly consider relevant information or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Young reasoned that the delegate's assessment of the applicant's claims had been flawed. The delegate had failed to adequately engage with the specific details of the applicant's fear of persecution, particularly in relation to the alleged actions of a particular group. The Court found that the delegate had applied an incorrect standard of proof and had not given sufficient weight to the evidence presented by the applicant. Consequently, the decision was found to be affected by jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders