BQQ19 v Minister for Immigration - [2020] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQQ19 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1653

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – first applicant making more serious claims before the delegate – new claims rejected by the Authority – whether the Authority overlooked a claim by the second applicant or failed to consider getting new information or by failing to get a copy of a document shown to the delegate considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA, 473CB, 473DC

Migration Regulations 1994 (Cth)

Cases cited:

Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473

AUF18 v Minister for Immigration [2019] FCAFC 222

AWT15 v Minister for Immigration [2017] FCA 512

AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365

BVC20 v Minister for Immigration [2020] FCA 565

CVV16 v Minister for Home Affairs [2019] FCA 1890

Hossain v Minister for Immigration (2018) 92 ALJR 780

Htun v Minister for Immigration (2001) 233 FCR 136

DTK17 v Minister for Immigration [2018] FCAFC 170

EVS17 v Minister for Immigration (2019) 163 ALD 422; (2019) 268 FCR 299

Kasupene v Minister for Immigration (2008) 49 AAR 77

Minister for Immigration v BBS16 [2017] FCAFC 176

Minister for Immigration v Eden (2016) 240 FCR 158

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZVFW (2018) 357 ALR 408; (2018) 163 ALD 1

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAVK v Minister for Immigration [2004] FCA 1695

Plaintiff M174 v Minister for Immigration (2018) 92 ALJR 481

First Applicant:

BQQ19

Second Applicant:

BQR19

Third Applicant:

BQS19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 140 of 2019

Judgment of:

Judge Driver

Hearing date:

22 June 2020

Delivered at:

Sydney

Delivered on:

23 July 2020

REPRESENTATION

Counsel for the Applicants:

Mr A McBeth

Solicitors for the Applicants:

Estrin Saul Lawyers & Migration Specialists

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as amended on 9 June 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 140 of 2019

BQQ19

First Applicant

BQR19

Second Applicant

BQS19

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 14 March 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protections visas. The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Sri Lanka who came to Australia on 1 May 2013. The first applicant is the…

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 BQQ19 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: [2020] FCCA 1653
Decision Date: 23 July 2020

CaseChat Overview and Summary

The applicants, BQQ19 and another, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their applications for protection visas. The applicants, who claimed to fear harm in Sri Lanka, alleged that the IAA had overlooked a claim made by the second applicant or failed to consider obtaining new information, including a document that had been shown to the original delegate. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had committed a jurisdictional error by failing to consider a claim made by the second applicant, or by failing to obtain a copy of a document that had been presented to the primary decision-maker. The applicants contended that these omissions amounted to a failure to properly consider their claims for protection.

Judge Driver found that the IAA's decision did not involve a jurisdictional error. The Court reasoned that the IAA had adequately considered the material before it, including the claims made by the applicants. The Authority's reasons for decision demonstrated that it had engaged with the evidence and the applicants' submissions. The Court concluded that the alleged failure to obtain a copy of the document shown to the delegate did not constitute a jurisdictional error, as the Authority was not obliged to obtain further evidence in the circumstances. The application for review was therefore dismissed.

Orders