BQN16 v Minister for Immigration - [2019] FCCA 481

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 481

Catchwords:
MIGRATION – protection (class XA) visa – where applicants arrived on student visas – sole ground of review unparticularised – not made out – tribunal comprehensively considered all of applicants’ claims – applicants’ evidence embellished or contrived – where first applicant additionally alleged defective interpretation at tribunal hearing – first applicant failed to adduce evidence of defective interpretation – where second applicant admitted in evidence before the court that she and the first applicant had no basis upon which to claim protection – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BHK15 v Minister for Immigration and Border Protection [2016] FCA 569
BYM16 v Minister for Immigration and Border Protection [2017] FCA 326
CNN15v Minister for Immigration and Border Protection [2017] FCA 579
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050

Vaofusi v Minister for Immigration and Border Protection [2018] FCA 1939

VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723
WACO vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant:

BQN16

Second Applicant:

BQO16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1393 of 2016

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

22 February 2019

Date of Last Submission:

22 February 2019

Delivered at:

Melbourne

Delivered on:

4 March 2019

REPRESENTATION

First Applicant:

In person

Solicitors for the First Applicant:

None

Second Applicant:

In person

Solicitors for the Second Applicant:

None

Counsel for the First Respondent:

Mr W Mosley

Solicitors for the First Respondent:

Clayon Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 1 July 2016 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the amount of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1393 of 2016

BQN16

First Applicant

BQO16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First…

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: [2019] FCCA 481
Decision Date: 4 March 2019

CaseChat Overview and Summary

The applicants, BQN16 and another, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the Minister for Immigration's refusal to grant them a protection (class XA) visa. The applicants had initially arrived in Australia on student visas.

The primary legal issue before the Federal Circuit Court was whether the MRT had comprehensively considered all claims made by the applicants for protection. A secondary issue, raised only by the first applicant, concerned an alleged defective interpretation of evidence during the MRT hearing.

His Honour Judge J D Wilson QC found that the sole ground of review, as articulated by the applicants, was unparticularised and therefore not made out. The court determined that the MRT had thoroughly examined all the applicants' claims, concluding that their evidence appeared embellished or contrived. Furthermore, the first applicant failed to provide any evidence to substantiate the claim of a defective interpretation at the tribunal hearing. Crucially, the second applicant admitted in evidence before the court that neither she nor the first applicant had any basis upon which to claim protection.

Consequently, the application for judicial review was dismissed.

Orders