BQQ15 v Minister for Immigration - [2017] FCCA 3412

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQQ15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3412

Catchwords:
MIGRATION – Application for judicial review – protection (class XA) visa – whether the Tribunal considered all evidence – Tribunal did not find claims credible – whether Tribunal failed to afford Applicant procedural fairness or natural justice – Tribunal complied with procedural fairness and natural justice obligations – application dismissed.

Legislation:

Migration Act 1958 (Cth), div.4 pt.7

Cases cited:

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30

Applicant:

BQQ15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1865 of 2015

Judgment of:

Judge McNab

Hearing date:

23 March 2017

Date of Last Submission:

23 March 2017

Delivered at:

Melbourne

Delivered on:

23 March 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Mr Hibbard

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed 13 August 2015 be dismissed.
The Applicant is to pay the respondent’s costs fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1865 of 2015

BQQ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

This application comes before the Court by way of an application filed 13 August 2015 for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 21 July 2015. The Tribunal affirmed the decision of a delegate of the First Respondent to refusing to grant the Applicant a Protection (Class XA) Visa.
The Applicant appeared before me today unrepresented but with the assistance of a friend who spoke good English and who assisted the Applicant with his case and English translation. An interpreter was booked to assist the Applicant but was, for some administrative reason, unable to attend. The opportunity was given to the Applicant not to proceed, but he indicated he wished to proceed with the assistance of his friend. The matter proceeded without objection.

Background

The background circumstances to this matter have been accurately summarised by the First Respondent and are replicated exactly from

[4] – [12] (citations omitted).
The Applicant is a citizen of Sri Lanka. On 12 August 2012, he arrived at Christmas lsland. On 10 December 2012, he applied for a Protection (Class XA) visa (Visa). The Applicant was assisted by Playfair Visa and Migration Services, which represented him for the purpose of the application.
In his Visa application, the Applicant claimed:
a)he was from a small island called Batalan Gunduwa off the coast of Sri Lanka;
b)his father was a Catholic Sinhalese and his mother was a Catholic Tamil. At home he spoke Tamil, though he could not read or write Tamil. He considered himself a Catholic Tamil, although he went to a Sinhalese school and could speak, write and read Sinhalese;
c)a Sinhalese person on the island asked the Applicant's father for a loan. His father refused to grant the loan.…

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 BQQ15 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: [2017] FCCA 3412
Decision Date: 23 March 2017

CaseChat Overview and Summary

The applicant, BQQ15, 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 examining whether the decision-maker failed to consider relevant considerations or took into account irrelevant considerations when assessing the applicant's claims for protection.

Judge McNab found that the decision-maker had failed to adequately consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The Court held that a failure to properly assess these critical aspects of the protection claim amounted to a jurisdictional error. The Court reasoned that the decision-maker's assessment was superficial and did not engage with the substance of the evidence presented by the applicant.

The Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders