BRV16 v Minister for Immigration - [2018] FCCA 1378

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRV16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1378

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal was biased – whether the Tribunal gave genuine consideration to the claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A, 476

Cases cited:

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

First Applicant:

BRV16

Second Applicant:

BRW16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1753 of 2016

Judgment of:

Judge Nicholls

Hearing date:

2 March 2018

Date of Last Submission:

2 March 2018

Delivered at:

Sydney

Delivered on:

1 June 2018

REPRESENTATION

Applicants:

The first applicant appeared in person and on behalf of the second applicant

Solicitors for the Respondents:

Mr L Leerdam of DLA Piper Australia

ORDERS

The application made on 7 July 2016 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1753 of 2016

BRV16

First Applicant

BRW16

Second 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 7 July 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 17 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

The applicants are a…

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 1378
Decision Date: 1 June 2018

CaseChat Overview and Summary

The applicant, BRV16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse BRV16's application for 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 delegate of the Minister had properly considered and applied the relevant criteria for the grant of a Protection visa, specifically in relation to BRV16's claims of persecution. This involved an assessment of whether the delegate's findings of fact were reasonably open on the evidence before them and whether the correct legal principles were applied in determining whether BRV16 met the definition of a refugee under the Migration Act 1958 (Cth).

Judge Nicholls found that the delegate had failed to adequately consider certain aspects of BRV16's claims, particularly concerning the credibility of the evidence provided. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a proper consideration of all relevant evidence and to provide reasons that are logically coherent and disclose the process of reasoning. The delegate's decision was found to be affected by jurisdictional error due to this failure.

Consequently, the Court set aside the delegate's decision and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders