BRE16 v Minister for Immigration - [2018] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRE16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1412

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal decision was unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 139 ALD 181
SZBEL v Minister for Immigration and Multicultural and Ingenious Affairs [2006] HCA 63; (2006) 228 CLR 142; (2006) 93 ALD 300; (2006) 231 ALR 592
CME15 v Minister for Immigration & Anor [2017] FCCA 3042; (2017) 327 FCR 205
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; (2008) 103 ALD 248

Applicant:

BRE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1727 of 2016

Judgment of:

Judge Nicholls

Hearing date:

6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Sydney

Delivered on:

1 June 2018

REPRESENTATION

Solicitors for the Applicant:

Stephen Hodges Solicitor

Counsel for the Respondents:

Ms S Palaniappan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 5 July 2016, amended on 21 September 2016 and further amended on 6 February 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1727 of 2016

BRE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 July 2016, amended on 21 September 2016 and further amended on 6 February 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 7 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Kimya Gul Khan made on 21 September 2016, attaching a transcript (“T”) of the applicant’s hearing before the Tribunal.

Background

The applicant is a citizen of Afghanistan of Hazara ethnicity and Shia Muslim religion (CB 31). He arrived in Australia as an “irregular maritime arrival” on 17 July 2012 (CB 32) and attended an entry interview with an officer of the Minister’s department on 20 August 2012 (CB 1 to CB 18). The applicant applied for the protection visa which was received by the Minister’s department on 7 November 2012 (CB 19 to CB 66). The applicant’s claims to fear harm were contained in a Statutory Declaration dated…

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: [2018] FCCA 1412
Decision Date: 1 June 2018

CaseChat Overview and Summary

BRE16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Sri Lanka, alleged that they feared persecution in their home country due to their involvement in a political organisation. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which requires the Minister to consider whether a person would be subject to persecution if returned to their country of origin. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by an error of law. Specifically, the applicant contended that the Minister failed to properly consider the evidence presented regarding the risk of persecution, thereby breaching the duty to afford procedural fairness. The applicant argued that the Minister's assessment of the evidence was superficial and did not adequately engage with the specific claims of fear of persecution.

Judge Nicholls found that the Minister's decision-making process did not demonstrate a failure to consider the relevant evidence or a breach of procedural fairness. The Court held that the Minister had adequately considered the material before them, including the applicant's claims and the country information relating to Sri Lanka. The Minister's assessment, while not necessarily agreeing with the applicant's assertions, was found to be a rational and lawful evaluation of the evidence. The Court applied the principles of administrative law, emphasizing that judicial review is concerned with the legality of the decision-making process, not the merits of the decision itself.

The application for judicial review was dismissed.

Orders