BQI16 v Minister for Immigration - [2018] FCCA 2342

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQI16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2342

Catchwords:
MIGRATION – Application for summary judgment – whether the applicant is an “unauthorised maritime arrival” – where the applicant entered Australia in Darwin after passing through Ashmore Reef – where the Full Court of the Federal Court of Australia has made a declaration that the purported appointment of a port in the vicinity of Ashmore Reef is invalid – application for summary judgment granted with costs – declarations made – writ of certiorari issued.

Legislation:

Migration Act 1958 (Cth), ss.5(5), 5, 5AA, 66

Federal Circuit Court of Australia Act 1999 (Cth), s.17A(1)

Federal Circuit Court Rules 2001 (Cth), r.13.07, pt.40
Federal Court Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), r.26.01(1)(d)
High Court Rules 2004 (Cth), r.41.02.1

Cases cited:

DBB16 v Minister for Immigration and Border Protection & Anor NSD354/2016
DBD16 v Minister for Immigration & Anor [2018] FCCA 1801

DBC16 v Minister for Immigration & Anor [2018] FCCA 1802

EPG17 v Minister for Immigration and Border Protection [2018] FCC (PEG552/2017)

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Minister for Immigration and Multicultural Affairs v Farshid Kheirollahpoor (2001) FCA 1306
DBB16 v Minister for Immigration and Border Protection [2017] FCCA 375
Colgate Palmolive Co v Cussens Pty Ltd (1993) 118 ALR 248

Applicant:

BQI16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1390 of 2016

Judgment of:

Judge Kirton

Hearing date:

17 August 2018

Date of Last Submission:

17 August 2018

Delivered at:

Melbourne

Delivered on:

23 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr McBeth

Solicitors for the Applicant:

Clothier Anderson & Associates

Solicitors for the Respondents:

Mr Cunynghame of Sparke Helmore

ORDERS

The applicant have leave to file and serve a second further amended application in the form of annexure “SV-2” to the Affidavit of Sanmati Verma, affirmed and filed on 7 August 2018 (Second Further Amended Application).

DECLARATIONS

A declaration that the purported appointment of a port, as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette No GN 3 on 23 January 2002 is invalid.
A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
A declaration that the applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of a delegate of the first respondent dated 11 April 2016.

FURTHER ORDERS

A writ of certiorari issue quashing the decision of the second respondent.
Pursuant to r.13.07 of the Federal Circuit Court Rules 2001 (Cth) there be summary judgment for the applicant in respect of ground 6 of the Second Further Amended Application.
Order 1 of the Orders made by Judge Kirton on 8 May 2018 be vacated.
The first respondent pay the Applicant’s costs of and incidental to the proceeding as agreed or as…

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.

Keep reading for free

Create a free CaseChat account to read BQI16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2342
Decision Date: 23 August 2018

CaseChat Overview and Summary

The applicant, BQI16, 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 was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate of the Minister had properly considered all the relevant information and applied the correct legal principles in assessing the applicant's claims for protection.

Judge Kirton found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the risk of persecution upon return to their country of origin. The Court reiterated the principle that a failure to consider relevant evidence or to apply the correct legal standard in assessing protection claims can constitute jurisdictional error. Consequently, the Court quashed the Minister's decision.

Orders